Physician Assisted Suicide

Expanding the Debate

Margaret P. Battin, Rosamond Rhodes, Anita Silvers

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317795315
• Edition: 1
• Topic: Medicine
• Subtopic: Ethics in Medicine

Physician Assisted Suicide is a cross-disciplinary collection of essays from philosophers, physicians, theologians, social scientists, lawyers and economists. As the first book to consider the implications of the Supreme Court decisions in Washington v. Glucksburg and Vacco v. Quill concerning physician-assisted suicide from a variety of perspectives, this collection advances informed, reflective, vigorous public debate.

1 Conceptual Issues

PHYSICIAN-ASSISTED SUICIDE is a poignant and troubling issue for individuals and their families in the face of serious illness, pain, and suffering. Their personal stories move us emotionally and incline us towards taking a particular position on each individual case. However, when we are asked to develop policy for the place where we live, or to adopt laws that will be the rule for every case, we need a fuller and more nuanced understanding of the issues. A reasonable person will want to explore a broad range of relevant background considerations before attempting to arrive at a position on the legalization of physician-assisted suicide. Some of these are germane to practice, others reflect on our culture, still others are theoretical.

Up until the 1997 Supreme Court decisions in the cases of Washington v. Glucksburg and Vacco v. Quill, one of the central themes of the debate was whether people have a constitutionally protected right to die. In the 1997 cases the Court reiterated its previously established view that people have the right to refuse invasive medical treatment, even though doing so may cause their deaths from underlying disease. The Court did not similarly acknowledge that people have a right to control the time and means of their deaths if they are in any other circumstance. Consequently, the debate about physician-assisted suicide has shifted focus to emphasize other concepts that are relevant to whether it is the state or individual citizens who should have ultimate control over how each of us dies. The papers in this section further this broad conceptual analysis.

First, it is useful to consider how our conceptualization of and attitudes toward death affect our understanding of physician-assisted suicide. Patricia Mann's essay, "Meanings of Death," explores how our philosophical and cultural explanations of death account for our passive attitudes toward our own deaths. She proposes that we consider adopting attitudes that will permit us to be more active in relation to our own deaths. She hypothesizes that legalizing physician-assisted suicide would involve us all in a dynamic evolution of cultural rituals and social relations to the deaths of people who are close to us, while death itself would remain something of a mystery.

Arguments about the legalization of physician-assisted suicide rely upon several technical philosophical concepts and theoretical distinctions. For this reason, it is also important to become fluent in the language of the debate and to understand the arguments at its core. Frances Kamm's essay, "Physician-Assisted Suicide, Euthanasia, and Intending Death," analyzes a number of the concepts at the heart of the debate—intending, foreseeing, double effect, killing, letting die, intending lesser evil, action, omission—and presents arguments for taking a particular position on these crucial distinctions. Because these key conceptual issues play such a central role in the theoretical debate, many of them are also discussed later in the volume by other authors. Kamm's analyses should be assessed in juxtaposition to the expositions and applications found in the chapters of succeeding sections.

Finally, the issue of physician-assisted suicide should be viewed in a larger cultural and temporal context. In formulating their own positions on physician assisted suicide, people are likely to want to take into account not only the immediate future but the distantly foreseeable consequences of legalization. In her chapter, "Physician-Assisted Suicide: Safe, Legal, and Rare?," Peggy Battin addresses the question of whether assisted suicide is likely to be a rarely chosen option or to be a common occurrence—the usual and preferred way of dying, and what cultural changes might lead to such evolution in practice.

These three chapters set out some of the most basic conceptual issues, the leitmotif of the debate in light of the Supreme Court decisions. They also frame the questions that we need to answer: Should we change? Can we adapt to change? Do we understand the conceptual and practical implications of change? As the debate expands, more conceptual issues will be introduced and the richness of the discussion will grow.

Chapters in later sections of this volume introduce additional concepts. Felicia Ackerman raises issues of double standards that suggest prejudice; Dena Davis compares suicide to sterilization; Jerome Bickenbach and Anita Silvers explore how concepts imported from antidiscrimination law and policy play out in the context of physician-assisted suicide; Rosamond Rhodes explains the relationship of rights and duties; and Lance Stell and Bernard Gert, Charles Culver and Banner Clouser question whether language itself plays a role in this debate. All of the essays in this volume add to the analysis of concepts that have moved to the foreground of the debate about whether to permit physicians and other medical personnel to be involved in their patients' suicides without threat of prosecution. All of these efforts add to the complexity of what has to be understood and taken into account within the ongoing debate.

1 Meanings of Death

Patricia S. Mann

DOI: 10.4324/9781315811369-1

This chapter examines the ways in which philosophers cultural expectations with respect to death are likely to be transformed by the legalization of assisted suicide. Anthropologists and social historians are likely to do better than philosophers in their efforts to characterize death, insofar as they can investigate the many faces of death in different cultural contexts: Death in battle may be heroic; death in youth may be tragic; death in old age benign. Religions and other self-consciously spiritual narratives offer a more literal relationship with death, insofar as they see death as a continuation of life. The agency of medical doctors is likely to remain more conflicted, insofar as healing remains their primary role. Many doctors may find it difficult to change hats and aid people in dying. But as doctors come to be employed primarily by managed-care organizations, they will inevitably come to reflect the efficiency concerns of their employers.

In this chapter, I do not take a position for or against assisted suicide. Instead, I examine the ways in which our cultural expectations with respect to death are likely to be transformed by the legalization of assisted suicide. I suggest the inadequacy of the philosophical framework currently taken as the basis for discussing the advantages as well as the dangers of legalizing assisted suicide, denying that individual autonomy is any sort of possibility for dying patients insofar as our individual agency in this situation is necessarily intertwined with that of various relevant others. By means of a theory of agency relations, I attempt to show the dynamic ways in which we may all adjust to the option of assisted suicide as a preferred end-of-life option. My theoretical goal is to explain the qualitative complexity of individual choices, as well as the dynamic social process by which both cultural values and individual choices are likely to evolve if we legalize assisted suicide.

* * *

What is the tie between two instants that have between them the whole interval, the whole abyss, that separates the present and death, this margin at once both insignificant and infinite, where there is always room enough for hope?"

—Emmanuel Levinas, Time and the Other

Is death possible? Can I die? Can I say "I can" with respect to death? Can I?"

—Simon Critchley, Very Little... Almost Nothing

Comprehending Death: The Limits of Philosophy

We philosophers are always trying to get a grip on death, and always failing. Anthropologists and social historians are likely to do better than philosophers in their efforts to characterize death, insofar as they can investigate the many faces of death in different cultural contexts: Death in battle maybe heroic; death in youth may be tragic; death in old age benign. In different times and different cultures death means very different things, as is clear when we read of suttee, the Hindu widow's immolation of herself on her husband's funeral pyre, or of seppuku, the suicidal disembowelling done by Japanese for infractions of honor.¹

Yet all these so-called meanings of death are more precisely identified as different social practices and associations surrounding death. Death itself is an event that exceeds our human capacity to wrest meaning from occurrences in the world. Strangely in our world and of it, death is also elusively yet absolutely not of our world. As when we speak of God, we speak of death in self-consciously metaphoric ways. We speak of a loved one's dying in terms of their "leaving us," "passing," or "passing away." But when we say they have left us, we mean only that they are no longer capable of interacting with us in daily physical interactions. We didn't really see them leave, and we have no real idea of where they have gone, even if we believe in heaven and the immortality of the soul. And they do not fully leave us, remaining present in our memories, or in books or letters they have written or in sweaters they have knitted or in projects they have begun for us to finish.

Similarly, when we say someone has passed away, we experience their physical absence, but we don't experience their actual passing to another place, whether to nothingness or some spiritual realm. The event of death is one that we only understand from the side of the living. A person who dies passes out of our culture, but its not clear how they go, or where. We have no physical, temporal, or conceptual grasp upon where they are going, and so there is also no obvious border between our world and death. As Jacques Derrida remarks, "The crossing of a border always announces itself according to the movement of a certain step—and of the step that crosses a line.... Consequently, where the figure of the step is refused to intuition, where the identity or indivisibility of a line is compromised ... the crossing of the line—becomes a problem." ² For this reason, Derrida designates the boundary that is death as an "aporia," a site of interminable confusion. So long as we live, we see only life and living, and so we speak necessarily with metaphors and elliptical partiality of our experience of another person's death and passage from life.

While it is impossible to speak about death as a destination in any literal sense, it might seem obvious that we can speak of it as a cessation of our human agency or efficacy in the world. From the perspective of materialism, we as human agents simply cease to exist. But what does that mean? It turns out that we also require metaphors to express an end of our worldly agency. To the Greek philosopher Epicurus, for example, death is a matter of ceasing to experience pleasure and pain; whereas Socrates in the Apology suggests that death may be a dreamless sleep.³ I am not sure these notions of a cessation of our human agency are any more imaginable, however, than is a deathly destination beyond life. I do not know what it would be to experience an end of pleasure and pain. And while I often fail to remember dreaming, it is only when I awake from sleep that I experience my dreamless sleep. I cannot imagine the dreamless sleep of death because I cannot imagine failing to wake up from sleep. Quite generally, I cannot understand the end of my experience, except as another experience. So these references to the end of my experience of agency leave me with a sense of interminable confusion, or in Derrida's terms, aporia.

The philosopher Emmanuel Levinas argues that Epicurus misunderstands the whole paradox of death, insofar as he "effaces our unique relationship with death," which involves precisely our inability as living agents to experience the nothingness of this future state. Levinas suggests that death announces itself in suffering, in "an experience of the passivity of the subject which until then had been active." But even this is not quite right, he points out, insofar as a subject who experiences passivity still experiences the alternative possibility of initiative and activity. So finally, he posits, "the unknown of death signifies that the [subject] ... is in relationship with mystery."⁴ In fact, Levinas s philosophical project involves emphasizing the radical alterity or mystery of other persons. So, the almost tangible mystery of death provides a metaphoric pathway to the otherness or mystery of other persons.

For Martin Heidegger, on the other hand, death provides a unique possibility for self-conscious reflection upon one's individual life. According to Heidegger, a human subject (Dasein) exists fundamentally as a "potentiality-for-Being" in the world. "It is essential to the basic constitution of Dasein that there is constantly something still to be settled ... something still outstanding in one's potentiality-for-Being." In death, of course, our human potentiality comes to an abrupt and absolute end. In anticipating death, or Being-towards-death, Heidegger believes we discover in a primordial way our potentiality-for-Being, insofar as we attempt to imagine an end of our potentiality. In anticipating death, we must imagine an impossible wholeness of Dasein insofar as nothing is left outstanding; we imagine a heady freedom from human entanglements insofar as nothing remains to be settled. Death, Heidegger emphasizes, is the only worldly phenomenon which is nonrelational, and so very much our own, our "ownmost possibility."⁵ So, in properly confronting the fact that we will die, we have access to a more authentic knowledge of ourselves as individuals.

Both Levinas and Heidegger offer accounts of our living agency in relation to dying. Dying itself remains beyond. Death for these philosophers illuminates aspects of living, but they have no more access to death itself than do non-philosophers. And so it seems that they can tell us little about our relationship to death when we are actually dying. Philosophers are limited by their commitment to the articulable; insofar as death is finally an inarticulable aspect of experience, they have no obvious recommendations about how we should reckon with dying.

Religions and other self-consciously spiritual narratives offer a more literal relationship with death, insofar as they see death as a continuation of life. Or rather, not seeing at all, they counsel faith that death is a continuation of life. In positing an immortal soul, religions within the Judeo-Christian tradition, for example, offer various narratives of how our human agency can, in some mysterious sense, continue after death. These narratives counsel both a responsibility to live well prior to death, and then when death beckons, a responsibility to die well, in God's hands. Insofar as these narratives require faith in God and an afterlife, they posit a culture on either side of the border of death, to utilize one of Derrida's metaphors.⁶ Religions offer comfort in the face of death insofar as they accept our human inability to imagine our own end, and offer a narrative of how life continues after death. Religions prepare us to face death by denying its most fearful and unimaginable implications, an absolute end to our human agency.

Philosophers and theologians, alike, in our Western cultural tradition have assumed that people will have a passive relationship with their own deaths, dying of natural causes or perhaps at the hands of another in battle. While not unthinkable, suicide has remained an exceptional, highly dramatic personal statement.⁷ With recent proposals that we legalize assisted suicide, we must envision the normalization of a very much more active relationship with our own deaths. Given the inarticulability of the experience of death, we may wonder what it will mean for individuals to actively choose it.

Given Heidegger and Levinas's belief that death illuminates aspects of our life prior to death, we may ask how proposals for legalizing assisted suicide illuminate the lives we are leading today prior to death. While I am not opposed to legalizing assisted suicide, I believe that we have not yet begun to grapple with important social implications of such a policy decision. Advocates of assisted suicide currently emphasize the value of an autonomous choice at the end of one's life, while opponents are concerned with categories of individuals—the poor, the disabled, minorities—who may be coerced rather than autonomous in their "choice" of assisted suicide. By contrast, I will suggest that the very notion of an autonomous choice at the end of one's life is problematic and misleading. We need a more complicated framework for evaluating the agency of dying individuals today, as well as for tracking changes in agency if assisted suicide becomes an option.

The Case for Assisted Suicide: Ronald Dworkin and the Philosophers' Brief

The much debated issue of assisted suicide corresponds with a rather paradoxical social situation in our late twentieth century. On the one hand, a combination of social and technological forces have combined to give individuals an unprecedented sense of control over their physical narratives. When we are hungry we may nonchalantly satisfy our hunger with fruits from Peru or condiments from India. When it becomes very hot, we move from one air conditioned environment to another. When we experience allergies, we take medications that eliminate our symptoms. We utilize contraception of various sorts so that sexual interactions cease to be organically related to reproduction. When a hip, knee, or shoulder joint fails, we replace it. We even replace such basic organs as kidneys and hearts. It seems consistent with this extraordinary level of control over our physical options that we would also exercise greater control over the time and place of our death. It is in this spirit that six contemporary moral philosophers have referred to an individual's death as "the final act of life's drama," in a recent amici curiae brief submitted to the Supreme Court i...

Table of contents

• Cover Page
• Half Title Page
• Reflective Bioethics
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction
• Part One: Conceptual Issues
• 1 Meanings of Death
• 2 Physician-Assisted Suicide, Euthanasia, and Intending Death
• 3 Physician–Assisted Suicide Safe, Legal, Rare?
• Part Two: Considering Those at Risk
• 4 Assisted Suicide Are the Elderly a Special Case?
• 5 Lessons for Physician–Assited Suicide from the African–American Experience
• 6 Why Suicide Is Like Contraception A Woman-Centered View
• 7 Disability and Life-Ending Decisions
• 8 Protecting the Innocents from Physician-Assisted Suicide Disability Discrimination and the Duty to Protect Otherwise Vulnerable Groups
• 9 Assisted Suicide, Terminal Illness, Severe Disability, and the Double Standard
• Part Three: Considering the Practice of Medicine
• 10 Physicians, Assisted Suicide, and the Right To Live or Die
• 11 Physician, Stay Thy Hand!
• 12 An Alternative to Physician-Assisted Suicide A Conceptual and Moral Analysis
• 13 Not in the House Arguments for a Policy of Excluding Physician-Assisted Suicide from the Practice of Hospital Medicine
• Part Four: Considering the Impact of Legalization
• 14 Physician-Assisted Suicide To Decriminalize or to Legalize, That Is the Question
• 15 From Intention to Consent Learning from Experience with Euthanasia
• 16 The Weakness of the Case for Legalizing Physician-Assisted Suicide
• 17 Physician-Assisted Suicide A Tragic View
• 18 The Supreme Court and Terminal Sedation An Ethically Inferior Alternative to Physician-Assisted Suicide
• 19 Would Physician-Assisted Suicide Save the Healthcare System Money? (Or, Is Jack Kevorkian Doing All of Us a Favor?)
• Part Five: Considering Religious Perspectives
• 20 A Catholic Perspective on Physician-Assisted Suicide
• 21 Christian Perspectives on Assisted Suicide and Euthanasia The Anglican Tradition
• 22 A Protestant Perspective on Ending Life Faithfulness in the Face of Death
• 23 Jewish Deliberations on Suicide Exceptions, Toleration, and Assistance
• Part Six: Appendices
• Appendix A Washington et al. v. Glucksberg et al.
• Appendix B Vacco et al. v. Quill et al.
• Appendix C The Philosophers' Brief
• Appendix D The Oregon Death With Dignity Act
• Contributors
• Index