In March the U.S. Court of Appeals for the Ninth Circuit decided that a Washington statute which prohibited physician-assisted suicide was unconstitutional (Compassion in Dying v. State of Washington). Less than a month later, the U.S. Court of Appeals for the Second Circuit declared unconstitutional an 1881 New York law which prohibited assisting suicide (Timothy E. Quill v. Dennis C. Vacco).
Judge Stephen Reinhardt, who wrote the decision in the Washington case, started his argument with the protection of liberty in the due-process clause of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Citing a passage from Planned Parenthood v. Casey (the 1992 Supreme Court decision regarding abortion) which said that "choices central to personal dignity and autonomy" are "central to the liberty protected by the Fourteenth Amendment," Reinhardt judged that the liberty protected in that clause must include the liberty to choose death, at least when a competent patient is terminally ill, suffering, and requesting a prescription from a physician to hasten death.
The Second Circuit was invited by plaintiffs down a similar path, but it declined "to identify a new fundamental right." Instead Judge Roger Miner turned to the equal-protection clause of the Fourteenth Amendment, deciding that the New York law which prohibited assisted suicide was a violation of that clause because it "does not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths."
Those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated except for the previous attachment to life-sustaining equipment are not allowed to hasten death by self-administered prescribed drugs.
The court held, in effect, that there is no important or legally relevant difference between refusing life-prolonging medical treatment and requesting lethal prescriptions, between withholding (or terminating) unwanted medical treatment and prescribing drugs to hasten death, between allowing to die and assisting in suicide.
This rejection of the traditional distinction between killing and allowing to die also helped clear the legal ground for Judge Reinhardt, for he found a precedent for his new liberty interest in the 1990 opinion of the Supreme Court concerning Cruzan v. Director, Missouri Department of Health. In that opinion Chief Justice William Rehnquist wrote, "We assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." That is a precedent, of course, only if there are no important distinctions between refusing life-prolonging medical treatment and requesting lethal drugs, between allowing to die and killing.
These twin decisions were reached by different paths, paths which, while breaking new ground legally, are well born within medical ethics. Judge Reinhardt's argument emphasizes liberty, makes individual autonomy trump over every other moral argument, and understands self-determination to include a right to self-destruction. Judge Miner's argument rejects the distinction between suicide and refusing treatment, between killing and allowing to die.
The distinction between suicide and refusing medical treatment, or between killing and allowing to die, is a "traditional" one, but I do not hold that against it. In medicine the tradition was initiated by those Hippocratic physicians who acknowledged the folly of attempting to preserve the life of a patient "overmastered" by disease. in law this tradition has been a part of the common-law prohibitions of suicide and assisted suicide. This distinction was invoked in all legislative initiatives on behalf of the patient's right to refuse treatment. So, for example, in New York the 1990 Health Care Agents and Proxies Act cautions, "This article is not intended to permit or promote suicide, assisted suicide, or euthanasia."
The distinction is also a traditional one within Christianity, and with good reason. For Christians the significance of dying - and of suffering, too, for that matter - is determined by the scriptural stories of creation and fall and redemption, stories of a cross and of an empty tomb.
To be sure, the significance of such events is complex; there is a certain dialectic in the Bible's dispositions toward suffering and dying. On the one hand, scripture underscores that life and its flourishing belong to the creative and redemptive cause of God. The signs of it are breath and a blessing at creation, a rainbow and a commandment, and above all, an empty tomb. Therefore, life and its flourishing are to be recognized and celebrated as goods, and as goods against which we may not turn without turning against the cause of God. life and its flourishing are gifts of God. They are to be received with thanksgiving and used with gratitude. Acts which aim at death and suffering do not fit this story, do not cohere with devotion to the cause of God or with gratitude for the gifts of God. Death and suffering are not to be intended, not to be chosen.
On the other hand, scripture does tell us that life and its flourishing are not the ultimate goods. They are not "second gods," to quote Karl Barth. Jesus steadily and courageously walked a path that led to his suffering and to his death. Therefore Christians may not have as though either survival or ease were the law of their being. Sometimes life must be risked. Sometimes it must be given up. And sometimes suffering must be endured or risked or shared for the sake of God's cause in the world. The refusal ever to let die and the attempt to eliminate suffering altogether are not signals of faithfulness but of idolatry. And if life and its flourishing are not the ultimate goods, neither are death and suffering the ultimate evils. They need not be feared finally, for death and suffering are not as strong as the promise of God. One need not use all of one's resources against them. One need only act with integrity in the face of them.
The moral significance of these distinctions may be difficult to defend, however, when the story within which they make sense is denied or ignored. They are hard to defend, for example, in the context of a simple utilitarian calculus. Then the only relevant consideration is outcomes, results, consequences. And if the consequences are the same, it is hard to see why - in a utilitarian calculus - the moral significance of mercifully allowing someone to die is any different from that of mercifully killing someone. Moreover, if the standard for assessing the consequences is the maximization of individual preference, and if someone (whether arbitrarily or reasonably) prefers death to life in their particular circumstances, then the utilitarian may well infer that we have a moral obligation to kill that person.
The distinction between killing and allowing to die seems more at home - at least initially - in the context of a discussion of rights and correlative duties. In this context, for example, one can distinguish between negative and positive rights, between the right not to be interfered with and the right to assistance. So, one can distinguish the right to life as a negative right - that is, the right not to be killed - from the right to life as a positive right, the right to assistance in preserving one's life. And one can also distinguish the right to die as a negative right - the right not to have one's dying interfered with - from the right to die as a positive right - that is, the right to assisted suicide. Since negative rights usually entail much more stringent correlative duties than do positive rights, and since the negative right to life imposes a duty not to kill, one could argue that, therefore, there can be no positive right to die and no correlative duty to assist in suicide. Perhaps that is why the right to life was once regarded as "unalienable."
But the notion of an "unalienable" right to life has lost something of its force in the contemporary discussion of rights. if rights are simply legitimate claims, and if I may refuse autonomously to make the legitimate claims that are mine to make, then I may refuse to claim my negative right to life. And then not only would the right to die extend to suicide, but it would also seem to extend to assistance in suicide if a contract has been freely entered. Indeed, if I refuse my negative right to life, it is hard to see why killing me would be a violation of that right. So, in this context, too, consensual killing ends up looking morally indistinguishable from allowing to die. The distinction may not be at home in the contemporary public discourse that focuses on consequences or on rights, but it is at home in the attitudes toward suffering and dying formed by scripture. The martyrs knew the scriptural story well, and bore witness to it by choosing neither death nor suffering but by being ready to endure either for the sake of God's cause in the world and their own integrity. Their comfort was that they were not their own but belonged to God, the giver of life, from whom not even death could separate them. And their comfort was their courage.
In more mundane and commonplace ways, many patients still display the same comfort and the same courage, still "bear witness" by their readiness to die but not to kill, by refusing both offers of assisted suicide and offers of treatment which may prolong their days but only by rendering those days (or months or years) less apt for their God-given tasks of reconciliation with enemies or fellowship with friends.
Because there was breath and a blessing, because there was a rainbow and a commandment, because there was an empty tomb, Christians will not choose death, will not intend death. But because the one who was raised had suffered and died, Christians will acknowledge that there may be goods more weigh than their own survival and duties more compelling than their own ease, goods and duties which determine how they should live even while they are dying.
I do not want to suggest that the distinction between killing and allowing to die provides a formula for resolving all the hard questions. There are surely some cases where an mission of treatment can only be described as intending the death of the patient - as in the failure to treat Baby Doe's esophageal atresia, for example. And there are some cases which are hard to classify as "allowing to die" or as "killing" - the diabetic patient with painful and terminal cancer who refuses to use insulin, for example. Still, there is a theologically significant difference between intending death and foreseeing it, between choosing death and choosing how to live while one is dying, between suicide and accepting death, between killing and allowing to die.
This theological account of the distinction may not be sufficient as a public defense, even when allied with the medical and legal traditions. I hope, however, to put forward a compelling public argument for preserving this distinction. I would do so by focusing on the issue of freedom.
The courts declare that physician-assisted suicide is a way to maximize human freedom and to increase our options. Freedom is important, of course, and no Christian formed by scripture should take offense at it or at the advice to maximize it. Freedom is a gift of God and part of God's cause. "For freedom Christ has set us free," after all.
But what do we mean by freedom? The Augustinian tradition has celebrated and cherished freedom, but its enthusiasm has been chastened by the recognition that human freedom is intimately related both to the grace of God and to the determinate features of human existence. Leaving aside the relation of human freedom to God's sovereign grace, let us consider the relation of human freedom to the determinate features of life.
Pelagius described human freedom as the capacity of a neutral agent to make choices unconstrained and uncoerced, to contemplate options without internal or external constraints. Equipoised between good and evil, undetermined even by their own previous choices, neutral selves can will what they will. The evidence for freedom on this account is human inconsistency, unpredictability, arbitrariness, the ability to will one thing one moment and a contrary thing the next.
Augustine and the tradition he founded saw nothing to cherish or respect in such an account of freedom. In Augustine's view there are no neutral selves, no agents who face choices unformed by the past, and no choices which do not form the determinate features of die future and of the self. Particular human beings and their choices are formed by their natural endowments (including, we say now, their genetic endowments), their natural communities, their cultures, their past choices, and the choices of others with respect to them.
These determinate features of human existence limit freedom, to be sure, but they also enable it. There is no human freedom which does not marshal endowments, weigh the claims of particular communities, interpret their culture, assess past choices, and respond to actions upon them. Human freedom does not exist in some disinterested point which transcends all that; rather, freedom is engaged in and with the determinate features of existence. Freedom in this sense is the capacity of a self to establish self, to form a whole out of the disparate and determinate features of life. And the evidence of freedom is not arbitrariness but consistency and predictability. The exercise of freedom determines not just a descrete action, cut off from the past and the future, but the whole of one's life.
The point is that all our choices, including our social choices, including even the presumably innocent choice to "maximize freedom," express and form the determinate features of our common life. The point can be illustrated with respect to technology. Technology is frequently introduced as a way to increase our options. But it can quickly become part of the determinate features of our existence. The technology that surrounds dying was introduced to give doctors and patients options in the face of disease and death, but such "options" have become socially enforced; at least one sometimes hears people say, "We have no choice!"
It is possible to claim, of course, that ventilators and CPR are the path of progress, but this shifts the argument from the celebration of options and the maximizing of freedom to the meaning of progress.
Even if a particular option does not become socially enforced, simply giving social legitimation to certain choices can and does effect the determinate features of our life. Our choices, even to regard certain things as choices, form selves - and our social choices, even to increase options, form our common life.
Consider, for example, the fife of the clerk who works the night shift at the convenience store (the example is from David Velleman, "Against the Right to Die," Journal of Medicine and Philosophy, December 1992). One determinate feature of her existence is identified on the front door: "The night clerk cannot open the safe." In order to maximize her freedom and increase her options, one might decide to give her the option of opening the safe. But to increase her options in this way would change the determinate features of her life, and not happily - or innocently. Not happily - because, given the vulnerability of a night clerk, to increase her freedom in this way would minimize her security. And not innocently - because under cover of maximizing options we would be forming selves to regard the vulnerability of others as a matter of moral indifference.
The sick and suffering are vulnerable too, and maximizing their freedom may render them still more vulnerable. To the vulnerability of the sick we will return, but first notice that decisions to increase options sometimes eliminate options. For example, an acquaintance invites me to a party; it is presented as an option, of course. But by increasing my options he effectively eliminates an option I suddenly realize I had the moment before but have no longer, the option I would have preferred, namely the option of both not spending three hours with this person and not explaining to him why I would rather not (or lying). The invitation increases my options, to be sure, but it also eliminates an option.
When we provide social legitimation for the option of suicide, we may increase options, but we also effectively eliminate an option, namely, the option of staying alive without having to justify one's existence. That happens to be an option much of the Christian tradition would choose if it could, an option the Christian tradition would like to preserve and protect, for it fits the story of life as a gift, as a given.
One may choose, of course, not to be killed, but the person who makes that choice is then responsible for it, accountable for living, and can be asked to justify the choice. With this point we return to the vulnerability of the sick and suffering, for this burden of justification will be hard to bear for those who simply do not want "to be a burden." Moreover, the very giving of choice can create some pressure to make a particular choice. The vulnerable will be subject not just to malicious thugs and con artists, not just to the pressure of some relatives who would be better off financially or emotionally if they were to die, not just to the pressure of "compassionate" friends who would like to see the suffering stop, but also to their own sense of an obligation to justify their existence or to quit it. And they would respond to such pressure by drawing on resources determined in part (and undermined in part) by the social choice to provide the option of assisted suicide as a way of maximizing individual freedom.
The point is not a subtle one, but it gets lost when we overestimate our autonomy and independence. It gets lost when we lose a sense of our dependence and interdependence. Our self-concept is always confused with our interpretation of what others think and feel about us. The threat to commit suicide is sometimes, after all, an inquiry about whether anyone really cares. To reply to such a threat by giving a person the option can too easily be read as an answer to that inquiry, and it can affect the resources a person has for choosing still to live.
If such is the case with individuals, it is also true for the culture. Providing the choice of assisted suicide to the vulnerable, to the dependent, to those who are no longer in control, is recommended, doubtlessly, as a way to increase their options, to enable them to assert their autonomy and to take control. Maximizing freedom in this way expresses a culture that values autonomy, independence and control. But it also forms both attitudes toward the suffering and the attitudes of those suffering. The effect of maximizing freedom in this way may be to make it more difficult for the sick and suffering - the dependent, those whose lives seem out of control - to refuse the option of death, harder to justify their existence.
This social innovation in the name of increasing options not only eliminates the option of receiving life as a given, but also shapes the way the choice will be made. The practice of dueling offers an instructive parallel. We no longer give people the option of setting disputes by means of a duel. At least, we do not provide social legitimation for it. Cultures which provided the option of dueling were obsessed with honor. Providing the option of dueling reinforced that feature of the culture, and that very feature of the culture formed the context within which people found it difficult not to throw down - or pick up - the gauntlet.
Our culture appears to be obsessed with individual autonomy. It now wants to express (and reinforce) that feature of the common life by offering dependent people a choice, giving them an option which extends self-control. But the very reason we have for giving people the option may make it more difficult for people not to choose it.
If we go down Judge Reinhardt's path, providing the option of assisted suicide as a way to maximize freedom, we are choosing not just a discrete piece of social policy but a pattern for our life together which asks the weak and the sick to justify their existence. To refuse to provide that option, to preserve and to protect the traditional distinction between killing and allowing to die, is to choose a pattern for our life where life is received as a given even when it can no longer be celebrated as a gift, and where being dependent on others and on God is accepted as our common situation. The traditional distinction remains the path to a common life in which people need not cling desperately to life, but may not kill.…