‘The Philosopher’s Brief’: An Exchange

To the Editors:

The Philosophers’ Brief [NYR, March 27] in favor of assisted suicide builds on skepticism about the distinction between passively letting die and affirmatively assisting in the death of another. The Supreme Court precedent in the Cruzan case is explicitly about passively letting die, but the six authors of the brief think that it is strong enough to encompass a physician’s affirmatively providing the means for voluntary patient’s suicide. The language of constitutional liberty supposedly knows no boundary between a patient’s saying “no” to further treatment and a patient’s telling a physician: “Help me die.”

In a moment of philosophical honesty, however, the authors of the brief make an important concession. They admit that although patients have a right to compel doctors to terminate treatment, they should not be able to force medical professionals to assist them in dying. “The right in question,” they submit, “is only the right to the help of a willing doctor.”

This admission gives away the game. If patients may compel the termination of therapy in order to die, it is not clear why they may not insist upon medical assistance in order to achieve the same end. Any serious exploration of that question takes us back to the distinction that the philosophers mean to reject: the distinction between letting die and affirmatively facilitating death.

Discontinuing treatment allows the patient to die, and this the patient may claim as a matter of right. But receiving a deadly dosage of pills, having air injected into one’s veins, or being suffocated with a plastic bag implicates the action of another. The philosophers concede that the participation of another may not be demanded as a matter of right.

Why, from the physicians’ point of view, should it matter whether they shut off a respirator or inject air into the patient’s veins? After all, if as the philosophers claim, the only relevant question is “aiming at death,” this mental state might accompany either actions of removing therapy or of affirmatively killing. Why, then, should physicians object to being forced to kill but not being forced to cease treatment?

The answer is simple. Most medical professionals do not want to be agents of death. If the courts or a conscious patient insists that physicians cease treatment, death is merely a contingent consequence. The courts instructed Karen Ann Quinlan’s doctors to shut off her respirator, they did so, and she continued to live in her vegetative state for several more years.

But if medical professionals are ordered to participate in killing—by supplying a deadly dosage or a Kevorkian-style gas mask—many of them would sense a corruption of their medical mission to save life. This is why a group of physicians and nurses have litigated, so far successfully, to block implementation of Oregon’s new law permitting assisted suicide.

Admittedly, not all physicians care whether assisting death violates the Hippocratic oath to further life. The question, then, is whether the state has a legitimate interest in regulating the medical profession by prescribing that physicians willing to facilitate death should not be able to do so—at least not consciously and intentionally. It is difficult for me to see a constitutional violation in this effort to preserve the integrity of the medical profession. Those in great pain may commit suicide. They may terminate life-sustaining therapy. But they may not convert the medical profession into killers for hire.

George P. Fletcher
Cardozo Professor of Jurisprudence
Columbia Law School
New York City

To the Editors:

As a social worker whose practice is devoted to working with the elderly and chronically ill, I read with dismay the so-called “Philosophers’ Brief” in support of the lawsuits seeking to legalize physician-assisted suicide. I see on a daily basis the pressures which exist to marginalize these populations. So many of our elderly are already vulnerable to feeling that they are or will soon become a “burden” to society or to their families. The legalizing of assisted suicide will add yet another pressure on them to “bow out” quietly and graciously.

The fact that some middle-class patients may already be availing themselves of this option privately with their own doctors, as Mr. Dworkin states in his introduction to the Brief, does not mean that society as a whole should give its approval to this practice. While it is difficult to ignore the profound suffering of the few for whom no adequate relief is available, the answer to their problem should not be one that will lead our society into a frightening unknown.

The “philosophers” postulate as present reality a society which has been rapidly disappearing (and which has never existed to any great extent for many poor people). Personal physicians who are devoted to their patients’ needs and have the time, expertise, and energy to grapple with the special issues faced by people at the end of their lives are becoming rarer. Doctors of this noble type are not being rewarded by our society or even being permitted to carry on as they have in the past. The doctor-patient relationship is being transformed into one in which the worth of a patient is measured solely in economic terms. If assisted suicide is legalized, we will see that what is now considered as a desperate and extraordinary solution for the few will become yet another possible outcome on the care map. My twelve years as a medical social worker convince me that assisted suicide will move at dizzying speed to enter the consciousness of all concerned: patients, doctors, families, and insurers, as an ever-possible “treatment plan.”…

Marjorie Hornik
New York City

Ronald Dworkin replies:

It is impossible not to sympathize with Marjorie Hornick’s concern that if assisted suicide were legal, poor and vulnerable patients might be pressured into a choice for death when they really want to live a little longer. She is right to emphasize, as I did, that such people lack what more affluent patients have: caring doctors who know them. But it is also important to remember that people who do have such doctors themselves often choose death; they and their families are grateful that, because their doctors are willing to run a risk for them, their “treatment plan” includes that option. (Indeed, in another letter to The New York Review too long to be published, a group of distinguished Boston University bioethicists^* suggested that the practice of doctors prescribing lethal pills for terminally ill patients was so widespread, and so openly tolerated by state and professional authorities, that “as a practical matter” there was little need for the constitutional ruling for which we argued.)
Of course all patients should have the benefit of careful and cautious state regulation designed to insure that any decision for death is informed, competent, and stable. But it is unfair to deny to the poor an option now enjoyed—though in an unregulated and dangerous form—by the well-off. It is also true, as I said in my introduction, that the position of the poor, who are often denied adequate terminal care, might be improved in a further way if assisted suicide were an option, because any sensible regulation would insist that information about state-of-the-art pain management be provided, and such management be offered, before any request for death could be entertained.

I can assure Professor Fletcher that the statement in our brief that drew his attention—that doctors should not be forced to assist in suicide against their conscience—was not a rare “moment of philosophical honesty,” and also that many doctors who resolve an agonizing dilemma by helping a patient to kill himself do indeed “care” that they are contributing to a death. People disagree profoundly and honestly about assisted suicide, and it does not help gratuitously to accuse anyone on any side of bad faith or callousness.

Fletcher’s own argument is marred by conflating two questions that must be kept distinct: What duty does a doctor have to act as his patient wishes? What right does government have to prevent a doctor from acting as his patient wishes? These are plainly different issues: it is one question whether a patient may compel his doctor to administer an experimental treatment, for example, and quite another whether government may prevent the doctor from doing so. Our brief discussed mainly the second question. It has been widely argued, by the Solicitor General among many others, that though government may not prevent a doctor from discontinuing life support if the patient insists, it may absolutely prevent him, in any and all circumstances, from prescribing lethal pills the patient requests, because in the former situation the doctor only omits to take action that could save life while in the latter he positively contributes to causing death.

We argued, on the contrary, that the distinction that is morally pertinent to the second question is not between omissions and positive acts but between acts or omissions that aim at death and those that do not. Since a doctor terminating life support might be aiming at his patient’s death, and a doctor prescribing lethal pills at a patient’s request might not be, a state could not appeal to that pertinent distinction to justify treating the two cases differently. (Fletcher’s description of doctors administering a “dosage” of pills, which suggests pouring them down a patient’s throat, and his classifying prescribing pills with “suffocating” patients and “injecting air” into their veins, may have misled him into thinking that doctors who prescribe fatal pills always hope that the patient will take them.)

When we consider the first question, however—a doctor’s duty to honor his patient’s requests—a further distinction becomes relevant. Since a patient has a right to forbid any unwanted treatment, even when his doctor thinks he should have it, he also has a right to insist that treatment already begun be stopped; and that right is powerful to enough to override any contrary scruples of the doctor in charge. But no one has a right, except in very special circumstances, to demand new treatment his doctor thinks harmful or wrong. So it is perfectly consistent to insist on all three of these propositions: that a patient’s doctor must remove unwanted life support; that he may refuse to prescribe deadly pills if his convictions forbid it; and that the state may not prevent a patient whose doctor has refused him such a prescription from turning to a different doctor.