April 1996 XVII/8
FEDERAL COURTS APPROVE PHYSICIAN ASSISTED SUICIDE
Last week, Justice Clarence Thomas of the U.S. Supreme Court avowed that when federal courts make decisions, they follow precedents, "not being interested in morality." (l) Recently, two federal appellate courts have declared that physician assisted suicide (PAS) is legal. (2) Most of the reasoning put forth in the opinion of the courts is based upon precedent. But in an effort to strengthen their innovative opinions, the two courts delved into the field of morality (ethics) as do most courts when rendering important decisions. This essay will consider the efforts of the two courts to employ ethical concepts. The critiques of their legal argumentation will be left to others.
The Second Circuit Court of Appeals tries to strengthen its argument by declaring that there is no ethical or moral difference between physician assisted suicide and allowing a person to die when therapy is ineffective or imposes a severe burden. The reason advanced for this startling assertion is that in both cases the person in question will die and some physical activity is needed on the part of caregivers in the dying process. Thus the court declares that "the ending of life by these means (withdrawing ineffective or burdensome life support) is nothing more or less than assisted suicide. The Ninth Circuit Court of Appeals considered the principle of double effect as a basis for its decision, maintaining that this principle enables one "to cause evil in the pursuit of good. Moreover, both decisions repeat the ethical errors of the Missouri Supreme Court insofar as the removal of artificial hydration and nutrition (AH&N) is concerned, maintaining that "when Nancy Beth Cruzan's feeding and hydration tube was removed, she did not die of an underlying disease. Rather, she was allowed to starve to death." In order to dispel the ethical mistakes put forward by these federal appellate courts in their PAS decisions let us consider 1) how ethical decisions differ from physical events, 2) the meaning of the principle of double effect, and 3) the application of these concepts to the case of withdrawing or withholding life support, especially withdrawing AH&N from PVS patients.
The essence of an ethical decision is the intention (moral object) of the agent. Ethical specification into good and bad human actions does not result from observance of mere physical activity. Killing an unjust aggressor and killing an innocent person are the same insofar as physical activity is concerned, but ethically they are as different as night and day because they have different intentions. When considering intention it is important to realize that there are two intentions involved in every human action, the proximate intention and the remote intention. These intentions may also be called the intention of the act (proximate) and the intention of the agent (remote). The remote intention answers the question "Why am I doing this." The proximate intention answers the question "What am I here and now doing in the ethical order, exclusive of my remote intention." Very often these intentions coincide and thus the two intentions combine to form one ethical act. But sometimes the intentions are different. This results in two distinct ethical specifications, one resulting from the remote intention and another resulting from the proximate intention. For example, my proximate intention may be to lead a blind man across a busy intersection. My remote intention may be to help this person and thus I perform an integrally good action. But it may happen that my remote intention is to gain the confidence of the blind man so I can later defraud him of his savings. We express the relationship of the two intentions by saying: "One should not do good to achieve evil" or "the end does not justify the means.
Sometimes pursuing a proximate intention results in two distinct but necessarily connected effects. One effect is desired or intended, and the other is merely tolerated because the desired effect could not be achieved unless the unwanted effect is allowed to occur. Intending an ethically good result and merely tolerating an unwanted physical result describes the principle of double effect. A dramatic example of double effect occurs when a pregnant woman is found to have a cancerous uterus. Saving the woman's life by removing the cancerous uterus results in the death of the unborn infant. But the death of the infant, because it is tolerated as a necessary physical evil is not judged in the ethical order. An effective way to judge whether one is using the principle of double effect correctly is to ask two questions: 1) Does the good intended outweigh the evil being tolerated; 2) Can I truly say I would not tolerate the evil effect if it were not connected with the good effect? If the answer to both of these questions is yes, then one is probably using the principle correctly.
How do the foregoing distinctions apply to the assertions of the courts? The major errors of the federal courts are:
1. They allow a good remote intention to justify an evil proximate intention. Killing an innocent person is never an ethically acceptable remote or proximate intention. Human life is a basic good, and we should never directly act in opposition to basic goods. Even though a remote intention to avoid ineffective therapy or to eliminate suffering is acceptable, this should not be accomplished by a proximate intention of directly hastening death or assisting suicide. It may happen that when removing life support the proximate intention has two effects, one desired, the other merely tolerated. Thus, when life support is removed because it is ineffective or imposes an excessive burden, it may hasten death. But the hastening of death, even though foreseen, is not directly intended. If a person is in a debilitated or comatose condition, the good that is achieved by removing life support far outweighs the evil which is not intended but merely tolerated.
2. When determining ethical specifications the courts consider only the physical acts; not the ethical intentions. Thus, the Second District Court of Appeals declares that omission and commission specify the ethical nature of removing life support and it equates removing life support with killing the patient. Because the remote intention is good, relieving suffering, they justify evil proximate intentions such as assisting suicide.
3. Both appellate courts imply that the use of morphine or other pain relieving analgesics intend the death of the patient. When discussing relief of pain the courts commit two errors: 1) They mistakenly assume that the use of morphine sufficient to relieve pain will necessarily bring about death by repressing respiration. This seldom happens. 2) In the few cases when pain medication does hasten death, the courts maintain that because this effect is anticipated it is therefore intended and "causes death."
4. The viewpoint of the courts in regard to removing AH&N is simplistic. Clearly a patient in a persistent vegetative state will die if the AH&N is removed. But death need not be the remote or proximate intention of persons removing AH&N. Rather, in the case of people in PVS, AH&N is an ineffective therapy for the pathology which causes the permanently comatose condition and it is burdensome as well. The proximate and remote intention would not be to kill the patient. A closer reading of the U.S. Supreme Court decisions in the Cruzan case confirms that the Court did not equate removal of AH&N with starving Nancy to death nor with a remote or proximate intention to cause the death of Nancy Beth, as did the Missouri Supreme Court.
There is no doubt that when life support is removed we use language which could be interpreted as intending the death of the person either by remote or proximate intention. Thus we say, *mom will be better off dead" or "death was a blessing for dad. But the meaning of these phrases is not that we intend the death of mom or dad but rather, given the physiological condition of mom or dad, we cannot do anything beneficial for them. Thus, the proximate intention of removing life support is to discontinue ineffective therapy or to avoid excessive burden. This differs completely from PAS wherein the proximate intention is to bring about the death of the patient even though the remote intention may be to eliminate suffering. Thus, removing life support from dying loved ones when it is ineffective or imposes an excessive burden is in accord with ethical norms. If death is hastened as a result of removing life support it is merely tolerated and is the unintended price of obtaining a greater good.
Kevin O'Rourke, OP
1. St. Louis Post Dispatch, 5/2/96, p.12-A.
2. Villanova Center for Information Law and Policy, Villanova University, PA, 1996 (http://www.law.vill.edu).
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