By GERALD DWORKIN
Review of The Future of Assisted Suicide and Euthanasia, by Neil M. Gorsuch
Princeton: Princeton University Press, 2006
One of the most risible of the false statements made by President Trump was his claim to “have studied the writings of the nominee closely.” The nominee was Judge Gorsuch for the Supreme Court. This from a man who says “Do me a favor: Don’t send me a report. Send me, like, three pages.”
Had Trump chosen to actually read some of Gorsuch’s writings he could have read the short speech that Gorsuch gave as a tribute to Scalia after his death.
Had he wanted to get a broader picture of Gorsuch as a thinker, Trump could not have done better that to read The Future of Assisted Suicide and Euthanasia. Published in 2006, this book was a version of Gorsuch’s D.Phil thesis written under the supervision of John Finnis at Oxford. Finnis is a well-known legal scholar whose views on what is sometimes called the new Natural Law have been influential in contemporary discussions of issues such as homosexuality, abortion, and euthanasia. Although influenced by Catholic thought, Finnis attempts to give non-religious support to views that are commonly based on religious arguments.
A good example is Finnis’ view of the right of states to use the law against homosexual thought and behavior.
A political community which judges that the stability and protective and educative generosity of family life are of fundamental importance to the whole community’s present and future can rightly judge that it has compelling reasons for judging that homosexual conduct…is never a valid, humanly acceptable choice and form of life, in denying that same-sex partners are capable of marrying, and in doing whatever it properly can…to discourage such conduct. (Law, Morality and Sexual Orientation)
While Gorsuch was clearly influenced by Finnis, in no way should it be inferred that his use of modes of reasoning that are similar produces conclusions that are similar. Many people are undoubtedly reading the book in an attempt to make predictions about Gorsuch’s views on abortion, or transgender bathrooms. This is largely fruitless. The one possible exception is this footnote.
Abortion would be ruled out by the inviolability-of-life principle…but only if, a fetus is considered a human life. But the Supreme Court in Roe, however, unequivocally held that a fetus is not a “person” for purposes of constitutional law. (272)
Whether Gorsuch would vote to overturn Roe would depend on how strongly he thinks the weight of stare decisis. Scalia’s view might be thought of as “stare at a wrong decision and decide differently.” For a good discussion of Gorsuch and stare decisis, see Jeffrey Rosen.
One might think that at least one could predict Gorsuch’s decision if a case involving assisted-dying were to come before the Court. Gorsuch’s view is that it is settled law that laws banning assisted-suicide are not facially unconstitutional and must be left to individual states to decide. But he envisions the possibility of a case being brought which argues that as applied to a particular class, e.g., terminally-ill persons, laws such as Oregon’s which allow assisted-suicide are unconstitutional on equal-protection grounds.
Oregon’s law may qualify for [rational basis review—GD] treating as it does the lives of the terminally ill as meriting fewer protections and safeguards against intentional destruction…than the lives of all other persons. This is especially so given that Oregon’s law expressly implicates a fundamental right—that is, the scope of the right to life. (178)
To make predictions even more confusing, in an epilogue, Gorsuch seems to raise the possibility that an applied challenge might lead to a constitutional right to assisted-dying. “But it remains to be seen whether in an applied challenge the Court would stand by its preference for state legislative experimentation or whether it might instead recognize a constitutional right that trumps at least some state legislation against assisted suicide.” ( 220)
Let us turn now to the book as an argument rather than as a clue to the future. The book begins by considering some important legal cases concerning the rights of dying patients. These include Casey, Quill, and Cruzan. By and large, Gorsuch believes their impact, particularly that of Cruzan, is to leave decisions about assisted-suicide or euthanasia to the states.
A further legal issue that arose in these cases was whether existing law which holds it to be an absolute right to refuse care, or ask for existing care to be withdrawn, requires, on grounds of equal treatment, that assisted-dying be allowed. Gorsuch argues that it does not -- invoking a distinction between intending death and merely foreseeing it. I will return to this distinction below.
Gorsuch then considers whether various moral theories, such as autonomy-based and welfare-based views, support a moral claim to the legalization of assisted-dying and concludes they do not.
Finally, he brings out his own, positive, argument against legalizing assisted-dying or euthanasia—the inviolability-of-life principle—henceforth IOL. He explains it, defends it in principle, defends it in application, explains how it might be applied to difficult issues involving incompetent patients, and concludes with some suggestions for future action by legislatures and courts. It is this argument which, although not original with him, is developed more fully, with both supporting argument, and arguments against its critics, than in much of the existing literature on assisted-dying.
Gorsuch begins by introducing the concept of a basic good. This is something valued as “intrinsically worthwhile, an end that is a reason, sufficient in and of itself, for action and choice and decision…It is not something whose value must be (or can be) deduced by some prior premises or contingent on other facts or arguments.” (157)
The parenthetical “or can be” is unfortunate in that it suggests that, unlike other uses of intrinsically valuable, it denies that a good can be both intrinsically and instrumentally valuable. One might think, for example, that mathematical knowledge is both valuable for itself as a human achievement and is instrumentally valuable in building bridges. So too we might value the life of Philip Roth just as a living human being but also for his books.
Let us assume that when Gorsuch talks about the value of human life he means only the intrinsically valuable sense and that this is the only sense that grounds arguments about assisted-suicide. On this assumption, the issue is whether there are such basic goods. But it is plausible to hold that reasons must come to an end somewhere. Why is X good? Because it leads to, or promotes, or is logically part of Y. Why is Y good? Because it is an instance of Z. To avoid an infinite regress at some point we have to claim (see?) that Z is just valuable for its own sake.
The next step is to claim that human life is such a basic good. But Gorsuch immediately makes an important addition to the claim, namely that not only is all human life innately valuable but that it is “equally” valuable. “[P]erhaps the most profound indicium of the innate value of human life, however, lies in our respect for the idea of human equality…we treat people as worthy of equal respect because of their status as human beings.” (159)
Depending on what is meant by “human life,” this is not clearly true. Something could be a basic good without being , necessarily, equally valued. For example, it is plausible to think that liberty is a basic good. Remember Mill: a man's mode of laying out his own existence is best not because it is the best in itself but because it is his own mode. But we need not value the choice of a five-year old equally with that of a 30-year old. The intrinsic value of the child having a choice is, arguably, not as valuable as that of the adult.
The notion of “human life” in play here can be used in two ways. It can be the notion of biological life, i.e., whether the being in question is human—meaning only that it has the genetic code of a human being—and living—meaning only alive and not dead. A human life can also be the notion of a biographical life, i.e., a life lived with its thoughts, activities, character, accomplishments, failures, etc. Human life as the life of a subject. If this is the notion at work then a person in irreversible coma has no biographical life and it is not self-evident why that life is equally valuable with any other person’s life.
Advocates of legalizing euthanasia, such as Judge Posner and Ronald Dworkin, accept that while life may be intrinsically valuable it is not equally valuable. As Posner puts it: “respect for human life must have something to do with perceptions of the value…of that life.” (Aging and Old Age)
Gorsuch believes this leads to a distinction between lives which are treated as inviolable and those which may be subject to intentional destruction. But it is always the case that there is a distinction between the fact that something is intrinsically valuable and it being what might be called unconditionally valuable, i.e., that there cannot be other values which have weight in deciding how to act.
It is also important to see that while establishing that something is intrinsically valuable can be part of an argument about what reasons we have to act, so that establishing human life is intrinsically valuable can ground a reason to refrain from attacking it, it does not without further argument establish an absolute principle that human life may never be (intentionally) taken.
One might immediately think of capital punishment or killing in a justified war as counter-examples to IOL. But Gorsuch limits his discussion to non-state actors. “I seek only to explain and defend an exceptionless norm against the intentional taking of human life by private persons.” (157). While it is fair enough to put the difficult issues of war and capital punishment aside, I find it very hard to see, given the arguments in this book, how he could avoid condemning both. The best defense of both involves notions of forfeiture which are not consistent with the inviolability of human life.
Let us assume for the sake of argument that human life is a basic good, and that it is equally valuable for all human beings. What does it mean to respect life as a basic good? Are we ever allowed to take (or risk taking?) human life.
The obvious objection is that the taking of the life of a person is, normally, wrong because it prevents the person being killed, against his will, from experiencing the rest of his life. And that when the competent will of the person herself is for her death this might change the wrongness of killing in important ways. Just as the expressed intent that I should have your old car changes the status of my driving it away from theft to accepting a gift.
Perhaps the right to life is a right that cannot be altered by the consent of the person. Kant thought that something like this is true with respect to suicide. And, in any case, consent may be necessary but not sufficient to justify killing or assisted death.. Both consent and the nature of the reasons for wanting to die are important. Otherwise we wind up with the legalization of the kind of consensual homicide made infamous by the German cannibal case.
Gorsuch spends relatively little space discussing laws against suicide except to argue against the view that their increasing removal from criminal penalties is motivated, as some have argued, by the recognition that it is a case of a principle of self-determination trumping the sanctity of life. Instead he argues, correctly, that criminalization is both useless and cruel. Again, as a matter of consistency with IOL, I believe Gorsuch is committed to a moral condemnation of all suicides.
There are cases, of apparent suicide, that Gorsuch thinks are not inconsistent with the IOL., e.g., the soldier who throws herself on the grenade to save her fellow soldiers. Why is this not inconsistent with IOL? Because IOL has a distinction and a supplementary principle that avoids the inconsistency. The distinction is between those acts or events that are intended and those that are merely foreseen. The principle is that sometimes it is permissible to bring about a death because it is merely foreseen, not intended—the principle of Double Effect.
Suicide is “intentional self-destruction.” The soldier who throws herself on the grenade foresees, perhaps with certainty, that she will die. But she does not intend to die and therefore does not intentionally act against the value of human life. She does not commit suicide. Thus Gorsuch. But, as Shelly Kagan has pointed out, were I to throw the soldier on the grenade in order to save others, we would certainly say the death was intended. Isn’t it ad hoc to deny the same attribution to the soldier?
There is a voluminous literature discussing the various difficulties in formulating, and defending, the principle of Double Effect. Here are some.
1) Difficulties in its application. Can I justify a craniotomy of a fetus to save the life of the mother by saying I only intended to make the skull smaller although I foresaw the death?
2) The absurdities of its application in some cases. If the only doctor on duty would increase the dosage of pain medication intending that it kill the patient must we then try to find a doctor who only foresees the death, thus causing the patient to suffer longer?
3) Theoretical objections. Some have argued that what can make an action right or wrong cannot be something about the agent’s beliefs or intentions but rather the reasons there are for or against the actions. It was wrong to give your aunt poisoned sugar even though you believed it was just ordinary sugar.
4) The failure to consider death intended when it is not your end, but a means to your end. I chose to aim at the aggressor’s heart rather than his leg since I believe the former (by killing him) is more certain to prevent his killing me. My end is not his death but stopping him from killing me. But since I chose as my means his death, that counts as intended.
This last case—the use of deadly force in self-defense—arises for private agents so Gorsuch must take it on, as he acknowledges: “…the law already permits the use of deadly force with the intention to kill…where self-defense or necessity compels it, thereby calling into question the inviolability-of-life principle, at least as a doctrinal or practical level.” (169)
Ever since Aquinas wielded Double Effect, in intellectual self-defense, to justify private self-defense it has remained a problem. The argument is, as Gorsuch puts it, “…there is no need for a person to act in self-defense with any intent to kill… only that the aggression stop.” ( p. 169, italics mine). This is truly a terrible argument. I may intend to kill you as a means to saving my life but I do not count as violating IOL because I could have acted only with the intent to stop you from killing me?
What is particularly egregious is that Gorsuch does not apply the same (bad reasoning) in the case of assisted-suicide: “assisted-suicide… which by …definition include acts where death is intended—whether as an end or as a means.” (73)
He contrasts this with his, perfectly legitimate, defense of the right of a patient to be taken off life-supporting treatment: “…the morally significant fact that assisted suicide always involves, on the part of the principal, an intent to kill …while by contrast … a patient exercising the right to refuse [treatment—GD] need not intend to end life, and those who assist need not intentionally participate in a scheme to take life.” (66, ital. orig)
It is true that a patient may ask to be taken off life support without an intent to die. But consider a case where someone does have an intent to die. He may, for example, want his family to have the money from his life insurance. In such a case the doctor must be participating in a life-taking scheme. So everything hinges on “need not.”
Another difficulty for his view is the practice of terminal, or palliative, sedation. The patient is rendered unconscious, and although she could receive artificial nutrition and hydration, the doctor does not supply her with food and water. How can it be maintained that the physician does not intend the death of the patient in such a case? What is the point of not providing food and water to the patient if it is not to hasten death?
In any case, why does Gorsuch insist that a physician who gives a scrip for a lethal drug must intend the patient’s death? One of the interesting things we now know from the Oregon data is that some patients never wind up using the prescribed drugs. What they seem to have sought was the security that they could take them if necessary. Judge Friendly committed suicide too early, when he was still able to work, because he feared that he would become too disabled to do so when his ailments became more debilitating.
In the case where a lethal drug is prescribed, a doctor might sincerely say that his intent was to accommodate a patient’s request and that he hoped it would never be used. Or that his intent was to give the patient a choice as to whether to live or not.
Gorsuch would be correct, of course, if he confined his critique to euthanasia. What distinguishes euthanasia from assisted-suicide is aiming at the death of a patient. Not, of course, as an end but as a means to the desired goal of ending, at the request of the patient, suffering and distress. Here the defense of euthanasia has to proceed by attacking IOL head on.
The principle of double effect itself is independent of IOL in the sense that it does not specify the nature of the evils or harms that are sometimes permissible when foreseen but not when intended. So, for example, while normally it is not permissible to intentionally cut off a person’s leg, if a surgeon has to do so in order to avoid gangrene it is permissible. The latter is a greater harm to the patient than the former. IOL claims that life is different. One may not intend to kill even if continued life is worse than death.
There are two problems for IOL in the context of assisted-death. Either Gorsuch must deny that any condition of the agent can be worse than death for her. Or he can accept that there are such conditions but although death can be foreseen, as in the giving of morphine for pain relief knowing that death will result, it cannot be intended as a means to the alleviation of the condition that is worse than death.
Although he does not explicitly argue either of these alternatives, it seems unlikely he would go the first route since if the continued pain of the patient is not worse for her, why should we do something that will bring about death, even if that death is foreseen rather than intended? As to the second path: when death is better for the person, and it is their wish to die, why does meeting their wish fail to show respect for the person? Could it be that the course of action that shows respect is the one which leaves the person both worse off and is against their will?
Gorsuch has other arguments against legalizing assisted-dying. These include arguments about the likely bad effects of such laws, the fact that by only allowing terminally-ill patients to use such laws we are denying the equal rights of the not terminal, the difficulties of determining who seeks death because of depression, the possibility of persons being pressured to die, etc.
Many opponents of assisted-dying have worked these fields. In general, the replies to such arguments either seek to show that suitable protections can be built into the law or that what is proposed as a reductio is accepted and welcomed.
What rational basis is there for treating the lives of those who are diagnosed as having less than six months to live any different from any number of other groups of persons—such as the patient suffering irremediable pain, the quadriplegic...Can we rationally single out just the ‘terminally ill’? (178)
Good question. I have suggested “the presence of an incurable, irremediable disease or medical condition, that the patient experiences as incompatible with her fundamental values.” (G. Dworkin, “Physician-assisted Suicide and Public Policy”, Philosophical Studies, vol.89, Nos. 2-3, March, 1998). Locked-in syndrome would be an obvious example.
Gorsuch stands out from most critics of assisted-dying because he attempts to give a purely normative argument for objection to such laws. Since he is, for the most part, fair in presenting the arguments of his opponents, and there is less waving of his hands as a substitute for argument than most, his failure to produce better arguments leaves me unpersuaded and increases my confidence in the legitimacy of such laws.
Posted on 20 March 2017
GERALD DWORKIN is Distinguished Professor of Philosophy Emeritus at the University of California, Davis. In 2016 he was the Brady Distinguished Visiting Professor of Ethics and Civic Life at Northwestern University.