Physician-Assisted Suicide and Public Virtue: A Reply to the Liberty Thesis of "The Philosophers' Brief"

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ABSTRACT: The "Philosophers' Brief," penned by six of today's most influential philosophers, was submitted as an amicus curiae brief to the Supreme Court as it prepared to consider the cases of Washington v. Glucksberg and Vacco v. Quill. It set precedent as the first such brief submitted by a group representing itself solely as moral philosophers. The brief became an overnight gold standard statement of the liberal philosophical understanding of the relationship of the State to so-called `private morality.' The main thesis of the brief is that physician-assisted suicide regards the deeply personal event of death, and that individuals have a constitutionally guaranteed fight to make decisions for themselves about the intimate details of their lives. In this article, James DuBois calls this the `liberty thesis,' and he argues that the briefs application of this principle is both contradictory and impracticable. The contradiction arises as the brief proposes restrictions on the fight to physician-assisted suicide--restrictions that require the State to abandon neutrality on intimate value judgments about life's worth. The impracticability arises insofar as the brief fails to leave room for a compelling State interest in promoting a minimal level of public virtue. Ironically, one of the strongest arguments that can be proffered on behalf of a State interest in preserving a minimal level of public virtue stems from its role in safeguarding human liberty.

"The Philosophers' Brief"(1) (PB) was submitted as an amicus curiae brief to the Supreme Court as the Court prepared to consider the cases of Washington v. Glucksberg(2) and Vacco v. Quill(3) It was signed by six of today's most well-known and productive philosophers: Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson. PB provided reasons why a constitutional right to physician-assisted suicide (PAS) should be recognized, and it urged that if it is not recognized, the Court ought at least to defer judgment, thus keeping the debate alive.(4) In his `Introduction' to PB, Dworkin observed that this brief set precedent: on no other occasion has a group intervened in a Supreme Court case "solely as general moral philosophers."(5) Within the field of health care ethics it became an overnight `gold standard' statement of the liberal philosophical understanding of the relationship of the State to so-called `private morality.' It has, for example, already found its way into the fifth edition of Arras and Steinbock's widely-used textbook, Ethical Issues in Modern Medicine.(6) Within law reviews the most attention it has received to date is from those generally opposing the idea that Justices should regard the opinion of philosophers when deciding cases.(7) One commentator went so far as to claim approvingly that in the Supreme Court cases under consideration, the Justices "ducked the philosophical issue[s]" and that "the moral issue[s] dissolved in the judicial consideration of the euthanasia cases.(8) However, Dworkin's reply seems nearer the mark:

   The main moral claims of [the Philosophers'] brief were, first, that
   competent dying individuals have, in principle, a right to decide for
   themselves how to die, and second that even if recognizing that right would
   to some degree increase the risk that other patients would be pressured
   into choosing death against their will, that increased risk does not
   justify refusing to recognize the right at all. None of the Justices
   `ducked' both of these claims--three of them decided against our position
   on the first and five on the second.(9)

Although the Supreme Court already decided the PAS cases, a critical discussion of the main thesis propounded by PB remains relevant. (The main thesis of PB is described below as the `liberty thesis.') First, as a legal decision, the Supreme Court's decision said nothing about the ethical status of the `liberty thesis' propounded by the brief--and PB has invoked it as a principle both of jurisprudence and of morality. …