Physician-assisted suicide: Two moral arguments

Ethics

Volumn 109, Issue 3, 1999, Pages 497-518

  Thomson, Judith Jarvis ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

DRUG;

ACTIVE EUTHANASIA; ANALYTICAL APPROACH; ARTICLE; ASSISTED SUICIDE; BEHAVIOR; DEATH AND EUTHANASIA; ETHICS; EUTHANASIA; HOMICIDE; HUMAN; JURISPRUDENCE; MEDICAL ETHICS; MOTIVATION; PASSIVE EUTHANASIA; PHYSICIAN; PHYSICIAN ATTITUDE; POLICY; RIGHT TO DIE; TERMINALLY ILL PATIENT; TREATMENT WITHDRAWAL; UNITED STATES; VOLUNTARY EUTHANASIA;

ANALYTICAL APPROACH; DEATH AND EUTHANASIA;

DOUBLE EFFECT; ETHICS; EUTHANASIA; EUTHANASIA, ACTIVE; EUTHANASIA, ACTIVE, VOLUNTARY; EUTHANASIA, PASSIVE; HOMICIDE; HUMANS; INTENTION; JURISPRUDENCE; MOTIVATION; PHARMACEUTICAL PREPARATIONS; PHYSICIAN'S ROLE; PHYSICIANS; PUBLIC POLICY; RIGHT TO DIE; SUICIDE, ASSISTED; TERMINALLY ILL; UNITED STATES; WITHHOLDING TREATMENT;

EID: 0033106470     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/233919     Document Type: Conference Paper

References (27)

1. See, e.g., the Supreme Court's opinion, by Chief Justice Rehnquist, in Vacco v. Quill, 117 S.Ct. 2293 (1997), which endorses the reasonableness of both arguments. All quotations below that are attributed to Rehnquist are from that opinion.
2. I assume throughout that the doctor is female and the patient male.
3. Here is Rehnquist: "When a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication."
4. In an interesting recent article, Patrick D. Hopkins asks why disabling a patient's artificial pulmonary system should count as merely letting him die, whereas disabling a person's natural, flesh-and-blood pulmonary system would presumably count as killing him. He asks: what's so special about the natural? See h .s "Why Does Removing Machines Count as 'Passive' Euthanasia?" Hastings Center Report 27 (1997): 29-37.
5. The philosophical literature on the difference between killing and letting die -and the still more general difference between doing and allowing (as it is commonly referred to) - is by now enormous. For a wealth of examples and argument, see Frances M. Kamm, Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1996), pt. 1. Kamm there focuses primarily on the moral significance of the difference between killing and letting die. For interesting recent discussions of the nature of the difference between killing and letting die, and the more general doing and allowing, see Jeff McMahan's "Killing, Letting Die, and Withdrawing Aid," Ethics 103 (1993): 250-79, and "A Challenge to Common Sense Morality," Ethics 108 (1998): 394-418. (The latter is a review essay on Jonathan Bennett, The Act Itself [Oxford: Oxford University Press, 1995]. Bennett had argued in that book, as in earlier work, that there is no morally significant difference between doing and allowing.) That condition (ii) must be met if a doctor is to let her patient die - see the text below - is argued for by both Kamm and McMahan. think it also pays to mention that it is very likely that there is no such thing as the difference between doing and allowing. In my own review essay on Bennett's book (in Nouŝ 30 [1996]: 545-57), I drew attention to a difference between cases in which a person causes an outcome O by doing something (engaging in an enterprise that causes O) and cases in which a person causes O but not by doing something. That seems to me to mark a difference between a pair of notions, "doing" and "allowing," though if so, they are leaner notions than Kamm and McMahan are concerned with. (A doctor's disconnecting her patient falls under "doing" rather than "allowing" in my scheme, but under "allowing" in theirs.) Perhaps the difference I point to should not be thought of as the difference between act and omission. In any case, if there is no such thing as the difference between doing and allowing, then each difference has to earn its own moral significance.
6. The philosophical literature on the difference between killing and letting die - and the still more general difference between doing and allowing (as it is commonly referred to) - is by now enormous. For a wealth of examples and argument, see Frances M. Kamm, Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1996), pt. 1. Kamm there focuses primarily on the moral significance of the difference between killing and letting die. For interesting recent discussions of the nature of the difference between killing and letting die, and the more general doing and allowing, see Jeff McMahan's "Killing, Letting Die, and Withdrawing Aid," Ethics 103 (1993): 250-79, and "A Challenge to Common Sense Morality," Ethics 108 (1998): 394-418. (The latter is a review essay on Jonathan Bennett, The Act Itself [Oxford: Oxford University Press, 1995]. Bennett had argued in that book, as in earlier work, that there is no morally significant difference between doing and allowing.) That condition (ii) must be met if a doctor is to let her patient die - see the text below - is argued for by both Kamm and McMahan. think it also pays to mention that it is very likely that there is no such thing as the difference between doing and allowing. In my own review essay on Bennett's book (in Nouŝ 30 [1996]: 545-57), I drew attention to a difference between cases in which a person causes an outcome O by doing something (engaging in an enterprise that causes O) and cases in which a person causes O but not by doing something. That seems to me to mark a difference between a pair of notions, "doing" and "allowing," though if so, they are leaner notions than Kamm and McMahan are concerned with. (A doctor's disconnecting her patient falls under "doing" rather than "allowing" in my scheme, but under "allowing" in theirs.) Perhaps the difference I point to should not be thought of as the difference between act and omission. In any case, if there is no such thing as the difference between doing and allowing, then each difference has to earn its own moral significance.
7. The philosophical literature on the difference between killing and letting die - and the still more general difference between doing and allowing (as it is commonly referred to) - is by now enormous. For a wealth of examples and argument, see Frances M. Kamm, Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1996), pt. 1. Kamm there focuses primarily on the moral significance of the difference between killing and letting die. For interesting recent discussions of the nature of the difference between killing and letting die, and the more general doing and allowing, see Jeff McMahan's "Killing, Letting Die, and Withdrawing Aid," Ethics 103 (1993): 250-79, and "A Challenge to Common Sense Morality," Ethics 108 (1998): 394-418. (The latter is a review essay on Jonathan Bennett, The Act Itself [Oxford: Oxford University Press, 1995]. Bennett had argued in that book, as in earlier work, that there is no morally significant difference between doing and allowing.) That condition (ii) must be met if a doctor is to let her patient die - see the text below - is argued for by both Kamm and McMahan. think it also pays to mention that it is very likely that there is no such thing as the difference between doing and allowing. In my own review essay on Bennett's book (in Nouŝ 30 [1996]: 545-57), I drew attention to a difference between cases in which a person causes an outcome O by doing something (engaging in an enterprise that causes O) and cases in which a person causes O but not by doing something. That seems to me to mark a difference between a pair of notions, "doing" and "allowing," though if so, they are leaner notions than Kamm and McMahan are concerned with. (A doctor's disconnecting her patient falls under "doing" rather than "allowing" in my scheme, but under "allowing" in theirs.) Perhaps the difference I point to should not be thought of as the difference between act and omission. In any case, if there is no such thing as the difference between doing and allowing, then each difference has to earn its own moral significance.
8. The philosophical literature on the difference between killing and letting die - and the still more general difference between doing and allowing (as it is commonly referred to) - is by now enormous. For a wealth of examples and argument, see Frances M. Kamm, Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1996), pt. 1. Kamm there focuses primarily on the moral significance of the difference between killing and letting die. For interesting recent discussions of the nature of the difference between killing and letting die, and the more general doing and allowing, see Jeff McMahan's "Killing, Letting Die, and Withdrawing Aid," Ethics 103 (1993): 250-79, and "A Challenge to Common Sense Morality," Ethics 108 (1998): 394-418. (The latter is a review essay on Jonathan Bennett, The Act Itself [Oxford: Oxford University Press, 1995]. Bennett had argued in that book, as in earlier work, that there is no morally significant difference between doing and allowing.) That condition (ii) must be met if a doctor is to let her patient die - see the text below - is argued for by both Kamm and McMahan. think it also pays to mention that it is very likely that there is no such thing as the difference between doing and allowing. In my own review essay on Bennett's book (in Nouŝ 30 [1996]: 545-57), I drew attention to a difference between cases in which a person causes an outcome O by doing something (engaging in an enterprise that causes O) and cases in which a person causes O but not by doing something. That seems to me to mark a difference between a pair of notions, "doing" and "allowing," though if so, they are leaner notions than Kamm and McMahan are concerned with. (A doctor's disconnecting her patient falls under "doing" rather than "allowing" in my scheme, but under "allowing" in theirs.) Perhaps the difference I point to should not be thought of as the difference between act and omission. In any case, if there is no such thing as the difference between doing and allowing, then each difference has to earn its own moral significance.
9. The philosophical literature on the difference between killing and letting die - and the still more general difference between doing and allowing (as it is commonly referred to) - is by now enormous. For a wealth of examples and argument, see Frances M. Kamm, Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1996), pt. 1. Kamm there focuses primarily on the moral significance of the difference between killing and letting die. For interesting recent discussions of the nature of the difference between killing and letting die, and the more general doing and allowing, see Jeff McMahan's "Killing, Letting Die, and Withdrawing Aid," Ethics 103 (1993): 250-79, and "A Challenge to Common Sense Morality," Ethics 108 (1998): 394-418. (The latter is a review essay on Jonathan Bennett, The Act Itself [Oxford: Oxford University Press, 1995]. Bennett had argued in that book, as in earlier work, that there is no morally significant difference between doing and allowing.) That condition (ii) must be met if a doctor is to let her patient die - see the text below - is argued for by both Kamm and McMahan. think it also pays to mention that it is very likely that there is no such thing as the difference between doing and allowing. In my own review essay on Bennett's book (in Nouŝ 30 [1996]: 545-57), I drew attention to a difference between cases in which a person causes an outcome O by doing something (engaging in an enterprise that causes O) and cases in which a person causes O but not by doing something. That seems to me to mark a difference between a pair of notions, "doing" and "allowing," though if so, they are leaner notions than Kamm and McMahan are concerned with. (A doctor's disconnecting her patient falls under "doing" rather than "allowing" in my scheme, but under "allowing" in theirs.) Perhaps the difference I point to should not be thought of as the difference between act and omission. In any case, if there is no such thing as the difference between doing and allowing, then each difference has to earn its own moral significance.
10. The case of the rival is due to Shelly Kagan; see his The Limits of Morality (Oxford: Oxford University Press, 1989), p. 101. Anthony Woozley had drawn attention to disconnectings by unauthorized agents in "A Duty to Rescue: Some Thoughts on Criminal Liability," Virginia Law Review 69 (1983): 1297. Kagan and Woozley both say, surely rightly, that in such cases, the agent kills.
11. The case of the rival is due to Shelly Kagan; see his The Limits of Morality (Oxford: Oxford University Press, 1989), p. 101. Anthony Woozley had drawn attention to disconnectings by unauthorized agents in "A Duty to Rescue: Some Thoughts on Criminal Liability," Virginia Law Review 69 (1983): 1297. Kagan and Woozley both say, surely rightly, that in such cases, the agent kills.
12. Woozley drew attention to the fact that the doctor kills her patient in such a case in "A Duty to Rescue," p. 1297.
13. All of the clear cases of letting die that I have come across in the literature are cases in which the agent has a liberty-right to behave as he does and, moreover, it is the agent's having that liberty-right that seems to me to be what makes them be clear cases. Not all cases are clear cases, however, and in light of some of them, it is arguable that my suggestion above should be weakened. What I have in mind is that action and inaction may work differently in this respect: perhaps we should say that meeting (iii) is required for letting die where action is in question but not where inaction is. Thus, it seems to me to be plain that the doctor I described in the text who disconnects her patient, having no liberty-right to disconnect him, does not let her patient die but instead kills him. What of a doctor who nonconnects her patient, having no liberty-right to nonconnect him? (As, e.g., where the patient wants connection, and there is no good reason for her to nonconnect him: among other things, no other patient has a prior claim on the equipment.) Does the non-connector kill her patient? Or does she instead wrongfully let him die? I lean toward the former, but would not be surprised if others leaned toward the latter. If they are right, then meeting condition (iii) is not required for letting die where inaction is in question. Here is another pair of cases. In one, the town's electrical supply is down, and a baby's parents have been keeping it wrapped against the cold. They now change their minds: they deliberately remove the wraps, and the baby therefore dies of the cold. As responsible for it, they have no liberty-right to remove the wraps. It seems to me plain that they kill the baby. In a second case, a baby's parents deliberately stop feeding it, thereby starving it to death. As responsible for it, they have no liberty-right to stop feeding it. Do they kill it? Or do they instead wrongfully let it die? Once again, I lean toward the former, but I do not find it surprising that some writers have leaned toward the latter - see, for example, the articles by McMahan cited in n. 5 above. If they are right, then (once again) meeting condition (iii) is not required for letting die where inaction is in question. My impression, however, is that any theory of these matters is going to have a cost in that it will draw lines at some places where intuitions differ. A good theory would be worth the cost; the best would explain why intuitions differ where they do.
14. The possible reply I describe in the text is only one of two that suggest themselves. The other is hinted at by the passage I quoted from Rehnquist in n. 3 above. That is, it might be said that drug-providing involves a killing (if the patient takes the drug) in this way: the drug kills the patient. By contrast, when a doctor nonconnects or disconnects, the patient merely "dies from an underlying fatal disease or pathology" that was threatening his life, and thus nothing actually kills him. I suggest that we bypass this idea, since the (putative) fact that a fatal disease does not kill a person who dies of it is too soft to support the moral weight it would be required to bear.
15. Suicide? Nobody was available to be prosecuted for it! But the deceased's estate was available for attachment. Since suicide was a crime, so also was attempted suicide (cf. murder and attempted murder), and there the attempter was himself available to be prosecuted. Like suicide, attempted suicide is no longer a crime. Moreover, since suicide was a crime, so also was assisting in a suicide. (Abetting a crime is standardly itself a crime.) What is in question here is only what ground is to be given for saying that assisting in a suicide should remain a crime while neither suicide nor attempted suicide does.
16. In her concurring opinion in Vacco v. Quill and its companion case, Washington v. Glucksberg, Justice O'Connor writes: "The parties and amici agree that in these States [New York and Washington] a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death." She does not explicitly add the proviso Dellinger added, though it may well be thought to lurk in the expression "to alleviate that suffering" (emphasis added), which implies that alleviating the suffering is the intent of supplying the medication. Rehnquist's opinion, by contrast, explicitly endorses the reasonableness of the proviso; see n. 12 below.
17. In n. 11 of his opinion, Rehnquist quotes a brief that itself contained the following quotation: "Although proponents of physician-assisted suicide and euthanasia contend that terminal sedation is covert physician-assisted suicide or euthanasia, the concept of sedating pharmacotherapy is based on informed consent and the principle of double effect." Rehnquist adds (in propria persona): "Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended 'double effect' of hastening the patient's death."
18. For a recent example, see Bennett, chap. 11.
19. In n. 12 of his opinion, Rehnquist says that the opinion does not say that the doctor who drug-provides will always have a significantly different intention from the doctor who disconnects or drug-injects; he says the opinion says only that the doctor who disconnects or drug-injects does, or may, intend only to respect the patient's wishes or to relieve the patient's pain. The footnote then concludes: "In the absence of omniscience, however, the State is entitled to act on the reasonableness of the distinction." I am not sure what this means. Does it mean that in the absence of omniscience, the State is entitled to act on the reasonableness of those assumptions about the doctors' intentions? What would entitle the State to do this?
20. I have argued in a number of places that it is a mistake, most recently in "The Right and the Good "Journal of Philosophy 94 (1997): 273-98.
21. The latter example is adapted from an example of Thomas Nagel's, in which a military officer drops a bomb on a village, intending the event that consists in the deaths of everyone in the village, wanting that because he thinks the deaths of everyone will (not cause but) include the deaths of some guerrillas who are hiding in the village. See Thomas Nagel, "War and Massacre," reprinted in his Mortal Questions (Cambridge: Cambridge University Press, 1979), p. 61.
22. The latter example is adapted from an example of Thomas Nagel's, in which a military officer drops a bomb on a village, intending the event that consists in the deaths of everyone in the village, wanting that because he thinks the deaths of everyone will (not cause but) include the deaths of some guerrillas who are hiding in the village. See Thomas Nagel, "War and Massacre," reprinted in his Mortal Questions (Cambridge: Cambridge University Press, 1979), p. 61.
23. Here is Rehnquist: "The law has long used actors' intent or purpose to distinguish between two acts that have the same result." He goes on to quote approvingly from an earlier case: "The . . . common law of homicide often distinguishes . . . between a person who knows that another person will be killed as a result of his conduct and a person who acts with the specific purpose of taking another s life." And he adds (in propria persona): "The law distinguishes between actions taken 'be cause of a given end from actions taken 'in spite of their unintended but foreseen consequences." What I ask in the text is: in which cases does that difference by itself mark crime off from non-crime? A difference in intention may make a difference as to what will in fact happen, and in that way may bear on permissibility in action. For an example, see n. 19 below. Here, however, we are concerned with a difference that is only in the agent's intention.
24. I argue here only that what an agent intends (as opposed to merely foreseeing) in acting is irrelevant to the moral permissibility or impermissibility of his action. (James Rachels argued for this conclusion in his The End of Life [Oxford: Oxford University Press, 1986], chap. 6.) I believe we should also accept the stronger conclusion that the agent's beliefs are also irrelevant, but I do not argue for it here.
25. Rehnquist quotes the following example in which an action is taken, not "because of" but "in spite of" its unintended but foreseen consequences (see n. 17 above): "When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death. . . . His purpose, though, was to . . . liberate Europe from the Nazis." Suppose we are there at the time of Eisenhower's ordering the invasion to begin and he whispers to us, "If truth be told, all I'm really intending in issuing the order is to cause the deaths of a lot of American soldiers." And suppose we believe him. Presumably we should telephone Roosevelt and say, "Cancel it!" For if that's all Eisenhower is intending in issuing the order, then there is real ground for worry about his planning of the invasion, and thus about what will go on in it: it is likely that there will be more deaths than are needed, not more than are needed for his purpose, of course, but more than are needed for the liberation of Europe. But if, perhaps per impossible, these concerns could be proved groundless, if, i.e., we could become convinced that all will go exactly as it would go if that were not his intention, then there would be no reason to cancel the order. If which intention he acts with will make no difference to what happens, then his intention bears, not on whether he may act, but only on him.
26. It was G. E. M. Anscombe who first introduced PDE into secular moral theory in her "Modern Moral Philosophy," Philosophy, vol. 33 (1958), which was reprinted in her Collected Philosophical Papers, vol. 3 (Oxford: Blackwell, 1981). The idea that we are committed to consequentialism if we fail to notice the distinction between intending and foreseeing, or fail to recognize its bearing on moral permissibility, emerges clearly in that essay.
27. It was G. E. M. Anscombe who first introduced PDE into secular moral theory in her "Modern Moral Philosophy," Philosophy, vol. 33 (1958), which was reprinted in her Collected Philosophical Papers, vol. 3 (Oxford: Blackwell, 1981). The idea that we are committed to consequentialism if we fail to notice the distinction between intending and foreseeing, or fail to recognize its bearing on moral permissibility, emerges clearly in that essay.