This article appeared in the May 1992 edition of the Catholic Medical Quarterly
Assisted Suicide and the Distinction Between Killing and Letting Die
JAMES F. KEENAN, S.J.
WESTON SCHOOL OF THEOLOGY, CAMBRIDGE, MASSACHUSETTS
The moral distinction between killing and letting die has come into particular prominence today in the debate over whether a medical professional can or should help end the life of a terminally ill patient who desires that her or bus life be ended. To examine that distinction in this context, however, I must make preliminary remarks.
First, the distinction is not between what is morally prohibited and morally permitted. If that were so, instances of letting die would be per se morally licit.' Rather the distinction is between (as I will argue) the morally prohibited and the morally ambiguous. In this essay, then, I argue that whereas societies, hospitals, families, and individuals must morally review when a particular omission in letting die is licit, no such review is needed for killing.
As a matter of social, official, and moral policy, killing patients ought to be held as morally unacceptable.
Second, for several reasons we must be careful not to place the important question of hydration and nutrition under the rubric of killing. First, considering the removal of hydration and nutrition as a question of letting die does not mean that it is morally licit, but rather that it is subject to moral evaluation: it may be ruled a morally right or a morally wrong instance of letting die. Second, some argue that generally speaking withholding or removing hydration and nutrition is only permitted in the case of the elderly who are imminently dying. If withholding or removing were considered a form of direct killing, then this exception would mean that we are allowing the direct killing of the imminently dying elderly. Any exception regarding hydration and nutrition ought not to mean an exception to the prohibition against the direct killing of innocents. Third, some may argue and believe that the removal of hydration and nutrition is like the removal of the use of respirators or antibiotics. The United States Supreme Court did this in the case of Cruzan: the judges' interests were not to whittle away the distinction between killing and letting die, but whether hydration and nutrition can he considered extraordinary means of medical treatment, was a licit form of letting die. Fourth, if the distinction between killing and letting die becomes obfuscated, euthanasia advocates can look at former policies of letting die as instances of killing and argue from precedents the legitimacy of their positions. 'Thus, it only serves the interests of those who advocate euthanasia to place the question of removing hydration and nutrition under the rubric of killing.
Similarly, it should be noted that Catholic physicians have since Pius XII appreciated the insight that the administration of pain killers to alleviate the pain of the dying ought not to be confused with direct killing.
Practising physicians know well from experience how at times that distinction can become a fine line, but they appreciate the importance of distinguishing that in such instances their administration of pain killers does not constitute a transgression of that line. The authority of that line is in part rooted in its fixity.
We ought to remember that the physical difference between withholding and withdrawing treatment is not a moral difference. Admittedly in certain courts of law once a procedure has begun there must be grounds for halting or withdrawing the procedures. For this reason, regrettably some people withhold certain forms of treatment, because even though there is some reason for trying a treatment, the lack of certitude regarding its effectiveness leads to fears of an inability later to withdraw the treatment. Thus, for instance, a family member admitting an elderly parent is often reluctant to allow the use of aggressive or extraordinary means simply because they fear that if the means do not succeed, the parent will be held hostage for many years by those means. This leads to the avoidable deaths of elderly people whose lives would have been restored were such means used. But because both the odds regarding effectiveness are uncertain and the means for withdrawing such support is more legally and socially cumbersome, responsible individuals decide to withhold treatment. Clearly here, law must catch up with moral insight that there is no difference between withholding and withdrawing.
Seventeen years ago, Gerard Hughes pointed out in The Month that the distinction between killing and letting die was eroding and that finding solid argument to ground it was an urgent task: "It is to establishing this important point that philosophers, theologians and lawyers ought to turn their attention before it is too late."2 That urgent task remains, and here I would like to divide various positions into two categories: rights and virtue arguments.
There are three arguments against euthanasia that invoke rights language: euthanasia violates the divine law; the natural law prohibits the direct killing of the innocent; and utilitarians argue against the right to give to another a right over my life. The first argument holds that directly killing a patient violates divine law. This argument is invoked by the Sacred Congregation for the Doctrine of the Faith (May 5, 1980). It argues that lacking authority, not being the author of life, we have no right to dispose of life.3 Some argue against this by stating that God has given us freedom and therefore that freedom implicitly includes adopting a right to dispose of life.4 This discussion needs, I think, deeper reflection,5 but that reflection is more remotely speculative than practical. The problem with this argument, however, is that it must appeal to an audience that acknowledges not only the Lordship of God, but more fundamentaly, the existence of God. For that reason, the very thing that we need, an argument for society, is still outstanding.6
For this reason, the Church often turns to the natural law and appeals to all people of good will who appreciate the importance of understanding ourselves and our inclinations. From this context, many derive the prohibition against the direct killing of the innocent.
This prohibition has considerable force and wide application in protecting especially the vulnerable. It is used to protect the fetus, the handicapped, and the infirm,7 as well as civilian populations in times of war.8
This principle has difficulty with the question of assisted suicide. The difficulty arises because the principle is interpreted as a prohibition against attacking the vulnerable, that is, those who cannot protect themselves. Admittedly, this is not the intent of the prohibition: the law exists not simply to protect, but also to prohibit any killing beyond self-defence or, it could be argued, capital punishment.9 Still, the principle is interpreted as completely compatible with an endorsement of assisted suicide on the grounds of patient autonomy. In this case, it is argued that only those who can articulate rationally a will to be dispatched ought to be eligible.
All those unable to invoke their autonomous prerogatives ought to be covered by the natural law principle protecting the innocents.10
Daniel Callahan provides the third argument by turning to John Stuart Mill. Mill argued that the one exception to "our right to do with our person as we will is the right to sell ourselves into slavery" because that sale would negate any future exercise of our liberty. Callahan finds ii parallel here: "To cede to another the right to kill us is to give that person the power to remove our freedom once and for all .... If I am master of my fate, I cannot transfer my right of mastery to another."11
Admittedly there is an intellectual and moral attraction to each of these arguments. But one of the central difficulties underlying each is the point where they agree: they deny that a patient has a right to be killed. This becomes particularly problematic when, for instance, an electorate (as happened in the state of Oregon) is invited to determine whether or not assisted suicide ought to be permitted. To respond to the question by denying the right is curious, precisely when that right is what the electorate will determine.12 The response to each of these arguments is indicative of the unsatisfactory frame of reference provided by the arguments, for the electorate in each instance denies the applicability of the argument to their situation. To the first argument, non-Catholics insist that the prohibition only affects Catholics; to the second, competent patients argue that they are not in need of protection; and to the third, the electorate responds, "Just watch me exercise my freedom."
There are, besides these rights arguments, three other arguments that are all connected with key insights into virtue ethics. The turn to virtue ethics is interesting, first of all, because it rejects contemporary practices of casting moral warning in terms of "rights" language. This ethics holds that rights language is really about the extent to which the principle of autonomy can be exercised. A rights ethic implicitly has an individualistic (liberal) foundation which generally sees moral problems only in the context of competing interests. Thus in the case of assisted suicide, the advocate asks, "Whose life (right) is it anyway?" Against this method, virtue ethicists ask whether courses of action build character or not. They contend that all moral evaluations are subject to a three sided question: who are we, who ought we to become, and how can we get there?13 Moreover, they argue that actions are themselves transformative and that we must ask not whether we have a right to act this way or that, but what type of people will we become by acting this way or that?
The first such argument concerns what effect assisted suicide would have on physicians. Many ethicists see here the primary problem with assisted suicide.14 They argue that any confidence or trust a patient does have in a physician will be undermined by the extraordinary shift in competencies that would occur were the doctor granted the faculty of killing a patient.15
Empowering a physician with the right to kill not only dramatically changes the physician's relationship with patients, but even more significantly, the physician's own self-understanding.
Now the physician, whose task was to cure and whose enemy was disease and death, finds by engaging in the practice of assisting suicide a new self-description. This is due to the fact that assisted suicide requires a physician to engage in the act of killing, an act absolutely incongruent with a physician's self-understanding. No other vocation has such such striking incongruence. The shift is not lost on the American physician, Jack Kevorkian, who has killed at least three "patients" to date and whose book is entitled, Prescription- Medicide.16
Are physicians ready to make this shift? No individual Physician can decide such a dramatic break with the self defining character of the profession, for that profession has codes which reflect the institutional nature of that vocation. Each physician is constituted as belonging to that profession through a series of social practices which require her or him to observe its codes. hose practices, receiving a degree from an educational institution, being certified by the government and being received into professional practice by peers, carry with them the obligation to observe minimal codes. Among them is the principle of doing no harm, a principle with roots as far back as Hippocrates himself. Is the medical profession capable of so radical a departure from its roots as to abandon this principle? No one in medical, ethical, or theological literature has believed this possible.
one of the primary animating features to the euthanasia movement is the fear of so many people of not having any control over the decisions that will affect their health care in their final illnesses.
Fearing that their dying will be protracted by "being hooked up" to dying prolonging machinery and believing that any of their remaining dignity will be taken away from them, many people believe that death is preferable. Yet this logic is indeed disturbing: having a fundamental distrust of the state of hospital care today, these proponents of euthanasia are ready to empower that same facility (which in their minds does little more than rob dignity and cause prolonged pain) with determining when, how, and by whose hand one's life will be terminated. Using the questions of virtue ethics, can we hold with any credibility that the fears many have of hospital care will be allayed by assisted suicide legislation? Will we have more trust in institutions which are already in turmoil by giving them a hand in killing?
Are not those same facilities already under considerable stress? Do not the many demands both from the state and the individual patient already strain the services provided by hospital administrators, nurses, physicians, staff'? Is not the fact that fewer young people are entering the medical profession a sufficient indicator that that profession is suffering already? Will demanding their hand in killing have the effect of bettering that profession and its attendant institutions? I think not.
Finally, if we hold that neither physicians nor hospitals are in the position of becoming better by endorsing assisted-suicide, that is, if we decide that those who are the designated aides in this matter are unable to fulfill that position, should we not also turn and ask the question of what probable effect would a policy of assisted suicide have on the general population? Who would we become as a society if we engage in the practice of euthanasia? Here 1 think much work needs to be done. But it strikes me that there is something about the "givenness" of our situation that would be seriously threatened were we to practise euthanasia.
Behind the Catholic belief in the Lordship of God and the natural law prohibition against direct killing of the innocent is the acknowledgement that there are some limits to the control of our destinies. Non-Catholics have for centuries shared that insight. For this reason, secular society has been reluctant to accept sex selection as grounds for abortion or genetic engineering for eugenic purposes. In these instances there are some givens that we accept rather than reject. Similarly, this willingness to refrain from assuming greater controls animates our environmental policies, where we maintain a discernible respect for nature as it is. Likewise, we appreciate the givenness of new neighbours and scorn local communities that exclude potential neighbours.
The givenness of our final days are particularly important and not unlike the givenness of our being born. Granted there are some things we can and should change in both areas: we ought to mitigate pain during both stages, for instance. But there remains an appreciation within these days that human life is shaped by nature. Today two movements seem inexorably drawn to defeating that respect of a givenness about life: abortion and euthanasia. Both movements are death-dealing ones, where agendas say a lot more about the people we will become, about the way we view suffering, about the way we face our futures. In a way both concern more the way we want to live our lives, than the way we want to end them.
Acknowledgement of the prudence in limiting our control of our destinies, the distinction between killing and letting die, gives us the confidence of keeping intact our understanding of ourselves, of our health care facilities and of our medical professions. Having that confidence gives us the freedom to respond to the problems of health care and in particular to the needs of the dying.
- James Rachels argues that there is no distinction between killing and letting die in "Active and Passive Euthanasia," Contemporary Issues in Bioethies edited by Tom Beauchamp and LeRoy Waiters (Belmont: Wadsworth Publishing Company, 1978) 291 294.
- G. Hughes,"Killing and Letting Die,' The Month 236 (1975): 45.
- See this developed by Augustine Regan, Thou Shalt Not Kill (Dublin: Mercier Press, 1979).
- See Augustine Regan's account of these arguments and his critique of them in his "Moral Argument on Self-Killing," Studia Moralia 18 (1980): 299-332.
- See Josef Fuchs, "Our Image of God and the Morality of Innerworldly Behaviour" and "Christian Faith and the Disposing of Human Life," both in his Christian Morality: The Word Becomes Flesh (Dublin: Gill and Macmillan, 1987):28-49; 62-82.
- See Daniel Callahan's comment in"Vital Distinctions, Mortal Questions," Commonwealth 115 (1988): 399.
- John Connery, "Abortion and the Duty to Preserve Life, in Theological Studies 40 (1979): 318-333.
- John Ford, "The Morality of Obliteration Bombing, Theological Studies (1944): 261-309.
- In that latter case, the criminal has been judged no longer to be innocent and therefore has lost the right to be protected. See Gerard Kelly, "Pope Pius XII and the Principle of Totality," Theological Studies (1955): 373 396; "Morality of Mutilation," Theological Studies, (1956): 322-344. A completely different view is found in Augustine Regan, "The Problem of Capital Punishment," Studia Moralia 11 (1976): 209-276.
- Lisa Sowle Cahill, "A Natural Law Reconsideration of Euthanasia," Linacre Quarterly (1977): 47-63.
- Callahan, 399.
- On rights as moral fictions, see Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981).
- Besides Maclntyre, some writers on the topic include Stuart Hampshire, Morality and Conflict (Oxford: Blackwell, 1983); John Kekes, The Examined Life (Lewisburg: Bucknell University Press, 1988); Edmund Pincoffs, Quandaries and Virtues (Lawrence. University of Kansas Press, 1986); Stanley Hauerwas, A Community of Character (Notre Dame: University of Notre Dame Press, 1981), Gilbert Meilaender, The Theory and Practice of Virtue (Notre Dame: University of Notre Dame Press, 1984. James F. Keenan, "Toten oder Sterbenlassen?," Stimmen der Zeit 201 (1983): 825-837.
- See Thomas Beauchamp and James Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 1989); Rudolf Ginters, Werte und Normen (Patmos: Vandenhoeck u. Ruprecht, 1982); Yale Kamisar, "Some Nonreligious Views Against Proposed Mercy Killing Legislation," Contemporary Issues in Bioethics, 308-317.
- Jack Kevorkian, Prescription- Medicide (Buffalo: Prometheus Books, 1991).