I want to thank Howard Ball for his reply to my earlier posts on the moral and legal issues at hand. I believe someone reading these posts can see where the essential points of disagreement lie. Although his last post is helpful in some ways, still, in my view, it makes several fallacious moves that can distract from the real issues.
At key points in the discussion, Ball skews the moral question by conflating it with the legal question. Thus he writes, “I am not willing to instate communitarian values about the intrinsic value of life and block [a dying person] from choosing to end his life.” Likewise, in the last sentence of his post on the moral issue, Ball writes: “If the dying person, possibly in great pain, and certainly not enjoying life, believes that life is no longer meaningful, then who is Lee to argue for intercession because the dying person does not agree with him?” But the moral question is whether the choice to commit suicide or the choice to assist someone to commit suicide—especially for physicians—is ever morally right. That has nothing to do directly with a question of blocking anyone from doing anything. I advanced an argument for the position that one’s life always remains inherently valuable and should be respected. Ball misstates my conclusion—and instead attributes to me a position on an issue not discussed. (In this part Ball also confuses which legal issue was under discussion: the legal question was not whether suicide itself should be a crime. I am inclined to think that not all solitary suicide should be a crime, since the law should be concerned only with other-regarding acts. By contrast, assisting suicide does seriously impact other people, as I argued in my previous posts.)
Second, Ball lumps together the various analogies I used in the course of making distinct points and attributes to me a reductionistic argument I do not make. He says: “Lee’s hypotheticals—a jilted teenager, or an elderly patient who wants her organs—are simply inapposite.” But my argument was not that those who are dying and suffering are analogous to the jilted teenager or an elderly patient whose organs might be useful to others. Rather, the point of the jilted teenager example was to help show that there is a truth to the issue of whether a person’s life is inherently valuable. We apprehend, rather than decide, what is inherently worthwhile. Similarly, the point of discussing the elderly patient whose organs could be useful was not to make a vague argument by analogy, but to indicate that we often acknowledge that one ought not to choose to destroy what is inherently valuable even for the sake of a good end.
Those two points together (that one’s life always remains inherently worthwhile, and that one ought not to choose to destroy what is inherently worthwhile) lead to the conclusion that it is morally wrong to choose to kill oneself, or to assist someone else to kill herself. Choosing to destroy a good is incompatible with love and respect for that good. Ball has not replied to that argument. He merely repeats his counter-position, that whether one’s life is worthwhile is a matter of decision. For it is not a serious reply simply to label an argument as “pure chutzpah” or “arrogant,” as he has done. (As an aside, if it really is a matter of decision, then why does Ball insist, in the legal context, that only those who are dying should have access to physician assisted death, i.e., assistance for their suicides?)
Ball’s framing of the issue is misleading in another way. He says: “We are talking about a person who is dying and who refuses to live a life less than that he has experienced up until the final diagnosis. It is arrogant for Lee to tell such a person that his life remains inviolable and to stick it out to the bitter end.” Ball writes as if the response to the dying by those who oppose PAS will only be, first, to use coercion to prevent them from dying, and, second, to tell them simply to stick it out. But opponents of PAS argue that one’s approach to those who are dying and suffering should be quite different from what is logically implied by the practice of PAS. Instead of coming to the dying and saying, in effect, “Here, we have something that will end your life quickly because we agree that your life (probably) is no longer valuable,” we should instead say: “You are worthwhile, and we will help relieve your pain”—something that the experts in palliative care testify is always possible.
And so when Ball asks, “If the dying person, possibly in great pain, and certainly not enjoying life, believes that life is no longer meaningful, then who is Lee to argue for intercession because the dying person does not agree with him?” he misconstrues entirely the point of asking the moral question. He writes as if the central question were whether we should use force or not on the dying. Rather, the moral issue is first of all for those persons who are faced with the real question of whether one should kill oneself or not. Since all of us will die, I ask that question for myself: would it be morally right for me to do that? Second, other people may ask for my advice, perhaps my mother or father, or persons that I am called to help in concrete ways. They might ask, “Should I commit suicide? What is the right thing for me to do?” When people ask these questions they are presuming that there might be true answers to them, and they want help to discover what the truth of the matter is. And I wish to find out what the truth of the matter is, both for my sake and for the sake of others, especially those who are close to me. Ball has ignored the real moral situation and instead assumed that the person contemplating suicide has only a decision to make, about which there is no truth or falsity.
On the legal issue, Ball blithely assures us that “We can prevent the slippery slope by incorporating into the law stiff barriers and by ensuring that the implementing bureaucracy does not slide down.” But this ignores the point that there will be pressure to change the laws (some of the reasons for which I indicated in earlier posts), that there will be pressure in personal contexts to evade the law, and that the law—and the attitude toward the dying embodied in the law—would lead to abuses, such as assisting the suicides of persons with undiagnosed depression. None of these points is addressed by Ball.
Ball thinks that the Supreme Court holding in Vacco v. Quill somehow implies that legalizing PAS will not lead to non-voluntary euthanasia. However, what Vacco held is that refusing treatment is crucially different from PAS: the latter but not the former entails the intention to kill and the judgment that a person’s life is not worth living—both of which the Court rightly held to be things it is properly in the state’s interest to discourage. This does nothing to imply that the dying who have decisionmaking capacity are differently situated from the dying who lack decisionmaking capacity—and it would have to, to preclude non-voluntary euthanasia. In fact previous cases—such as Cruzan v. Missouri Dept. of Health—indicate just the opposite: in Cruzan the Court held that those who lack decisionmaking capacity and those who have it are similarly situated with respect to refusing medical treatment. There is every reason to believe that the same pattern would recur regarding their relation to death, if death (like refusing treatment) were held to be a benefit. Those with decisionmaking capacity and those without it would be seen as similarly situated.
And so if access to a “dignified death” were judged to be a benefit, and a benefit the state allowed to the dying who have decisionmaking capacity, the state could not at the same time withhold that alleged benefit from the dying who lack decisionmaking capacity, not without violating the requirement of equal protection of the law. In short, a culture that adopts the position that death can sometimes itself be a benefit, that some persons have lives not worth living, will indeed produce grave injustices.