What’s Wrong with the World

This is all a classic case of the phenomenon I have called "choice devours itself." You start by making "choice" your first priority. Then you include in that the choice for something like, say, death. (It's usually death, though selling sex is another example I won't discuss for the moment here.) The dogma then becomes: People must be allowed to choose death for themselves. This is very important. Suicide must be legal. Assisted suicide must be legal. This is part of letting people define their lives.

Then we find that, wonder of wonders, people are having this "choice" foisted upon them even when they did not explicitly make it. And the left, which cried "slippery slope" and scoffed at the warnings that this was exactly what would happen, usually embraces the "progress" with open arms. Occasionally they deny what is happening, if that makes them feel better instead. (In this case, since Belgium itself is happily admitting it, that option seems closed off.)

Wesley J. Smith has been a Cassandra pointing out for years that never, never, never do the vaunted "controls" and "legal safeguards" and what-not prevent this sort of thing. As a sheer matter of inductive historical inference, they should not be expected to.

But the answer always is, "We'll do better next time." Where "better" means letting people have that all-important choice of death while keeping the beast semi-caged, preventing people from being coerced or pressured, preventing people from being killed without express consent. It's all just a matter of poor implementation, you know. No fundamental principle is involved.

But I say that a real principle is involved. We could start with a fundamental spiritual principle: Namely, that death, like eros, is a demon when made a god. As a Christian I believe that the invariable historical spiral from the already-evil permission of assisted suicide to the further evil of outright murder without request is a result of the evil in the heart of man and the evil of the initial act, leading to a worship of death as an end in itself. And yes, I believe in real devils, and I believe that they are gleefully assisting the process by further blinding the minds of men to moral truth.

But what other principle lies behind the historical inductive evidence? After all, I can't expect either non-Christians nor even some of my more, shall we say, respectable Christian friends to feel comfortable talking about the evil in the heart of man, much less a personal Devil.

Consider an advocate of assisted suicide, the philosopher and ethicist Ronald Dworkin. Dworkin advocates something known as the "endorsement constraint," which holds that "paternalistic" laws are wrong, because people must endorse their lives. He has also been publishing for decades arguing for a fundamental right to assisted suicide. He co-authored an amicus brief to this effect in 1997 with several other philosophers. Dworkin scoffs, in his book Freedom's Law (p. 144), at the so-called "slippery slope" argument that doctors will kill patients without consent if assisted suicide is made legal. He even expressly refers to Holland, the best known case at the time in which this was done, but then blandly says that the state could make laws that would prevent such a thing. He seems touchingly unaware that Holland had laws against such a thing, but that in practice those laws were entirely ignored and discarded. The same, of course, is true in Belgium. So in the very act of scoffing at the historical argument, Dworkin brought up a counterexample to his own claim about the ease with which laws would prevent non-voluntary euthanasia!

Someone eager to mount a distinctively liberal objection to what the Belgians are doing might try to argue that it violates Dworkin's own endorsement constraint, since the people being killed didn't endorse their own deaths.

Here, however, I think it instructive to point out that all of Dworkin's own passion has been directed towards promoting death and suicide. When he mentions non-voluntary euthanasia in Freedom's Law, there is no argument given that it is wrong. Instead, Dworkin implies that it would be wrong to kill people who "clearly want to live" (and huffily implies that doctors would never do such a thing!) while leaving it nicely ambiguous as to how wrong it would be, or whether it would be wrong at all, to kill people who have made no statement and are presently unable to decide competently for themselves. He merely says (falsely, as a matter of historical fact) that it would be quite easy for the state to prevent such a thing.

But why should the state prevent such a thing, on Dworkin's own principles? After all, the person who is living in a state of "low quality of life" presumably hasn't "endorsed his life" that way, either, unless he has left behind an explicit request to live under such circumstances. Therefore, the advocate of non-voluntary euthanasia could actually use Dworkin's own endorsement constraint to argue that it is paternalistic (and therefore wrong) to refrain from euthanizing people when they are living a life they have not endorsed and which, the theorist believes, it is unlikely that they would endorse. (Because their life in those circumstances is so miserable and undignified.)

One can simply stipulate that it is a core liberal principle that non-voluntary euthanasia is always wrong, that it just is required for euthanasia to be ethically administered that a person make a competent, explicit request for it. But, given that we are talking about a liberal who strongly advocates the right to die, such a stipulation has a strong whiff of unprincipled exception about it. Consider: Suppose that a person has left no instructions about what is to be done to or for him should he become unconscious, and suppose that he does then suffer some illness or accident that leaves him unconscious or not mentally competent. It is unavoidable that medical and personal decisions will be made for him. Someone must have a financial power of attorney to manage his property and assets (if he has any). Someone must have the authority to decide where he lives, what his diet is, what medications he is given. If he gets pneumonia, someone must decide whether to give him antibiotics. There is no getting around it. Even if the patient is thrown out to die in a snowdrift, that is itself a decision. Once the person is helpless or mentally incompetent, someone must decide. What guidance, then, do autonomy principles or anti-paternalism principles give in such a situation? In the medico-legal literature, the two ways in which decisions have been made in such a case are the "best interests" doctrine and the "substituted judgement" doctrine. I don't know of a third option. Those two do seem to cover the bases. Either you make the decisions based on what, in your judgement, is really best for the patient, or you make the decisions based on what you think the patient previously wanted or would want. Or, of course, a combination of the two. The various autonomy or anti-paternalism principles would favor, of these two, the substituted judgement doctrine. In other words, the only way even to attempt to apply such requirements in a principled way to a non-competent person is to try to make the decisions in line with the person's wishes as well as one can discern or conjecture them.

This is what is done constantly in American courts when it comes to removing food and fluids from non-competent patients. It was under the legal doctrine of substituted judgement that Terri Schiavo was killed by the withholding of food and fluids years ago. The court conducted an original trial in which witnesses testified about what they had heard Terri say, and then the legal fiction under which she was killed was that the court had decided by "clear and convincing evidence" that she would have wanted to have food and fluids withdrawn. (See my article here.) It is difficult to see how Dworkin or any similar theorist of choice and autonomy could have found fault with that approach, though of course they might upon examination have disagreed with the specific conclusion that this was really what Terri would have wanted. Were lethal injection a legal option (which the theorists of autonomy want it to be), there would be no good reason in liberal principle not to apply the same approach to that method of killing. Indeed, right-to-die advocates are the first to point out that a lethal injection is in a sense more merciful than dehydrating someone to death over a period of two weeks.

Dworkin and company point explicitly to the fact that the courts allow non-occurrent expression of wishes to govern the removal of food and fluids. They use this to argue that surely there could be no consistent objection to allowing assisted suicide to patients who do make a contemporary, competent request for death. But at no point do they say that the courts are definitely wrong to allow substituted judgement in the case of removing food and fluids, nor that such an approach never should be applied to active suicide. On what basis could Dworkin make such an argument? It just so happens that, at the moment, he and his colleagues are merely arguing for assisted suicide with contemporary request, but he has no strong reason to resist lethal injection on the basis of other (non-contemporary) evidence about the person's wishes. In fact, it's obvious that if the person did leave an advance directive saying that he did wish for a lethal injection under such-and-such circumstances, Dworkin positively should endorse this and not consider it non-voluntary euthanasia at all. Even though, as Dworkin and company mention in the brief, the person's wishes might change or might have changed under the actual later circumstances, the use of living wills is generally considered an unimpeachable way of honoring principles of autonomy, just as ordinary wills are considered a legitimate way to carry out a person's wishes regarding the disposal of his property.

At the most, a liberal might worry a bit prudentially, especially where there is no literal, written living will endorsing lethal injection, that an incorrect conclusion might be drawn by other means about what the patient wished or would have wished. But that worry can cut both ways: One might incorrectly conclude that the patient wished or would have wished for life, just as one might incorrectly conclude that the patient wished or would have wished for death. Once death is another choice on the table, on what basis in liberal principle are we required to err on the side of life when the patient has not made his wishes expressly known? None that I can see.

It is noteworthy that at no point in the history of jurisprudence have the advocates of autonomy opposed extending death-affirming "choices," via inferences about what the patient wanted or would have wanted, to those who have not left behind an explicit record of their wishes. Very much to the contrary: The autonomy advocates have always been on the side of withholding "treatment," including food and fluids, from patients as an expression of autonomy. It is thanks to the autonomy theorists that artificial nutrition and hydration are so widely thought of as "forced feeding." This is because it is so often assumed that a patient would not want such feeding and because such a battle has been fought to give people the coveted "right to die" in such circumstances, even though they did not leave behind an express, competent request to that effect.

What it will come down to is just how important the theorist considers it that death be made available as a "choice." If it is only somewhat important, the theorist may conclude that it would be prudentially better to err on the side of life, because the patient might recover later, because death is irrevocable, and so forth. If the theorist considers it very important that death be available as a "choice," the theorist will have reason to brush aside such prudential considerations and to opt for substituted judgement for lethal injection. Considering that Dworkin expressly says, in his personally written introduction to the philosophers' amicus brief, that states should be forced to allow assisted suicide, because it is a fundamental right, despite prudential concerns, it looks like he thinks death as a choice is very important indeed. So do all theorists that I know of who advocate legal assisted suicide. In a sense, they have to consider it quite important, because they are arguing that there is a fundamental right to die and that states and other jurisdictions are violating that right by not making death available. No one does that with smaller matters. I may find it irksome to be required by the state to drive with a seat belt, but you don't hear anyone arguing for a fundamental right to drive without a seat belt. Eminent philosophers of law do not submit amicus briefs to the Supreme Court arguing that it is unconstitutional to make me drive with a seat belt. They must think killing oneself is a lot more important than that!

There is nothing whatsoever in autonomy principles that tells us to err on the side of life. If one happens to believe that life is better than death or that it would be worse to kill someone contrary to his wishes than to keep him alive contrary to his wishes, then one might oppose non-voluntary euthanasia, lest more harm than good be done by accident. But nothing in the liberal principles about the importance of autonomy gives one that evaluation of the relative importance of life and death or the relative badness of killing against wishes (accidentally) versus keeping alive against wishes (accidentally). Those evaluations must come from elsewhere altogether.

It is quite easy to see that a moral protection against non-voluntary euthanasia--lethal injection without explicit request--that depends merely on the importance the theorist attaches to death is a flimsy protection. This explains perfectly well how we got where we are, and I think it shows quite clearly why the Dworkins of the world have very little to say consistently against the Belgian doctors, provided only that the Belgian doctors make an effort to carry out what the patient himself wished. Considering the pro-death cultural atmosphere in Belgium, it is in fact plausible that many of the patients being non-voluntarily killed in Belgian hospitals believed, prior to their accidents or illnesses, that euthanasia is a good thing. It may be that the Belgian doctors are being cavalier about discerning patient wishes. At most, the autonomy theorists could suggest that they be more individualized in their approach, that they talk to family members, and that they make some plausible effort to find out if being euthanized by lethal injection was in line with the patient's previous wishes. But this is a fairly weak objection to the Belgian practice. Anti-paternalism principles and autonomy principles can prohibit killing people who have definitely said that they want to live, but they have little force against killing people who have not spoken on the matter.

Another point arises here: What about little children or those who have never been mentally competent? We already know that Belgium considers that euthanasia must be made an option for children able to express their wishes. But what about infants or those who have always been severely mentally disabled? What do autonomy principles have to say about whether they should be lethally injected without request? Well, frankly, nothing at all. Autonomy principles have no purchase one way or another with people who have never had the ability to have competent wishes or make competent requests concerning their own deaths. Such people are just outside the scope of such principles. They can't leave living wills, because they are never mentally competent to do so. It would be meaningless to talk about what they wished competently on this subject. Yet, again, decisions must be made for them. As with the patient who used to be conscious but is now unconscious, the never-competent patient has to have his decisions made for him. There is no getting around it. In the case of a never-competent patient there is no way to be non-paternalistic. Unless one develops an elaborate and obviously specious legal fiction of what the person would want if he had at some point been mentally competent, one will have to make decisions on a best interests basis. But this only makes it easier for the right-to-die theorist to justify lethal injection. It should not be controversial to say that a right-to-die advocate believes that death sometimes really is in a person's best interests. Presumably that is why the theorist is working so hard to make it possible for people to choose death. Again, absent an unprincipled fiat that, despite all the arguments and rhetoric in favor of the important right to die, it just is always wrong to kill without competent permission, there is no reason for the liberal theorist not to allow this option to parents, guardians, or doctors for the never-competent.

What I have shown here is the ideological mechanism behind one aspect of the "choice devours itself" phenomenon. This isn't all that there is to be said. I could also talk about the instances in which suicide helpers actually hold down the hands of those who have previously said that they want to die, preventing them from pulling off the deadly bag of gas. Surely that is a violation of autonomy principles, isn't it? Not so fast. A commentator explained here, though not necessarily endorsing, what the liberal could say in favor of such outright, physical murder. It's the "Ulysses and the sirens" principle. By holding down the person's hands and killing him, the helper was really respecting his autonomy. The person's wish to die was competent. His desperate struggle for breath was mere instinct. Is there a strong reason for the advocate of choice and autonomy to reject that reasoning? Not that I can see. Once the right to die is treated as a very important, basic right, why should it not be granted even to people who know when competent and calm that they will flail for breath when being gassed to death, and who consent ahead of time to being held down?

We could also ask why so often, historically, even the attempt to ascertain the patient's wishes is abandoned. But that would probably take us into realms where one determined to defend the liberal right-to-die advocate would say that the argument was "merely historical" or "slippery slope." Surely Professor So-and-So, the really consistent and committed right-to-die autonomy theorist, would oppose with outrage the abandonment of the attempt to discover and follow a patient's wishes, if that patient has previously been competent. By this time we may be dubious about that assurance, but leave that question for another day.

I have accomplished my goal for now if I have shown the anatomy of choice devours itself to this extent: There are reasons, in the liberal autonomy principles which underwrite the right-to-die arguments, which well explain the eventual and historically inevitable move to euthanizing people who have not expressly requested death.

[Update] Thanks to a reader, I have now obtained a copy of the Belgian paper. It is very short. A couple of interesting points emerge from it. First, the paper talks about discussing things with the relatives but expressly states that the final decision should be made by the doctor. "It must be made clear that the final decision is made by the care team and not by the relatives." Second, there is little discussion of ascertaining the patient's own wishes. Hence, as discussed above, it might be that an autonomy theorist would chide the Belgian doctors for not taking a more individualized approach. There is one reference to advance directives in the article, but only to discontinuing treatment that is inconsistent with advance directives. Third, and most ominously in conjunction with #1, the final sentence of the article is, "The present document applies to children as well as to adults." In case anyone was wondering whether Belgian euthanasia for children would a) be carried out only on children old enough to "request" it themselves (as though that would make it morally legitimate) and b) be carried out only with the consent of the parents, this document answers those questions. The answers are no and no. By this document Belgian doctors are giving themselves permission to euthanize children who have not requested it and to euthanize them against their parents' wishes. As discussed above, since young children have never been competent, autonomous individuals, autonomy principles have nothing to say against this.