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Posted January 17, 2006
revised January 18, 2006
re: rights
There are reasons and there are excuses. The Supreme Court is America's final arbiter of public excuses for illiberal behavior. What are its reasons, though?
The Supreme Court, in its strange ruling on Oregon's voter-enacted assisted-suicide law, is encumbered, you might say, by the weight of precedent. I, a reasoning citizen, am not.
Whereas the big issues for the Supreme Court was the legal standing of the Controlled Substances Act, and the allegedly legitimate power of the federal government to regulate certain drugs (in this case in the assistance of suicide), for me the issue of doctor-assisted suicide focuses mainly on one's right to life.
Behind the verbiage of the peculiar majority vote, and the even more peculiar dissents, I'm sure that an alleged
right to life is on the justices' minds, too. Which is no doubt why the majority in the court decided in favor of the Oregon law. A person's life is his or her own business. Freedom of contract implies that seeking contracted assistance in one's own business is not only likely, but legitimate. The contracts one makes between oneself and one's doctor, about the course of health and viability (or lack thereof) of one's own body, is none of government's business, especially the federal government's business. Hence the temptation to use any justification to uphold Oregon's citizen-enacted physician-assisted suicide law. Justice Scalia has a similar suspicion about the majority court opinion, but won't follow in the repudiation of precedent:
The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality—for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. See Hoke v. United States, 227 U. S. 308, 321Ð323 (1913); Lottery Case, 188 U. S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the termlegitimate medical purposehas any meaning, it surely excludes the prescription of drugs to produce death.
Scalia's argument up to the last sentence is easy to follow. Long tradition shows that the rights of individuals to non-interference — in a word, to liberty — have not been honored in the United States. The government, using different moral standards — that is, standards that rank liberty somewhere down on the list of values and virtues and conditions to achieve — has consistently abridged freedom, so that, following this tradition, which the court claims (not unreasonably) to be Constitutional,
the Oregon law must be squelched, as must the liberty of would-be suicides, in the cause of traditional moral regulation.
Though Scalia finds it easy to sympathize
with the notion that assisted suicide is none of the Federal Government's business,
the final sentence in this paragraph suggests, to me, that Scalia, ultimately, has other sympathies that outweigh the liberty concern.
If the term
he writes, legitimate medical purpose
has any meaning,it surely excludes the prescription of drugs to produce death.
This can be true only if your idea of medicine is a non-contractual one, a concept of medicine that assumes goals other than those specified by the patient. If you support freedom of contract, on the other hand, legitimate medical purpose
becomes the actual medical goals of the patient. Scalia, in this one sentence, shows that his primary allegiance is not to liberty, but to some other standard.
Now, under most conditions, medical purposes of the patients are all about getting better, not speeding up the dying process. Because most patients want to live, and want to regain their health, the discipline of medicine can usually be construed as univocally in favor of health and continued life. But because some patients — including many people who do not have an option of longevity — actually want death, instead of painful life, doctors have long practiced a less lofty goal, that of assisting people to die, through varying means. This, too, is legitimate, if you believe in the right to life, and the legitimacy of contracts based on this right.
Now, there is a boneheaded argument against suicide allegedly based on a right to life. One could safely ignore it, were it not for the fact that many people make it. They simply ask how a right to life
can be turned into a demand to be killed. A right to life means a right to keep on living, and that's it.
But that's not how rights work. A right to property means, also, a right to divest yourself of property. A right to speech means, also, a right not to speak. A right gives the rights-bearers options, and it obligates others to respect those options. If I have a right to speak, you are obliged to let me speak, and obliged not to force me to speak. If I have a right to property (say this computer), you are obligated not to take the computer without my permission, nor to damage it in any way; you are also obligated to let me sell it below cost to my nephew, or sell it for above eBay's used-market price to my neighbor.
That's why a right to life must include the option to die, by the rights-bearer's choice.
Many people do not believe in a right to life, however. And they do have one advantage in our culture, they can easily continue the pretense of some doctors that the only goal can and must be life at all costs. I submit that this is merely the professional veneer to the contractual reality of medicine. It sounds much loftier, I admit, than their status under a limited rule of law: mere assistants to patient goals. Doctors from the allegedly higher
perspective, on the other hand, often act as moralists to the rest of the population. And that's how some would like to leave it.
Of course, there exist scads of people who would rather the doctors get off their high horse and just shut up. Your business is not to pontificate about my smoking, or my cancer; your business is to allow me to live and die like I want, vis-à-vis my body's health and illness.
This attitude is not uncommon. Some doctors even agree with it, and smirk when other doctors talk incessantly and religiously about the Hippocratic Oath and such, without the wider context of contractual relations and the actual wishes of patients.
I suspect that Scalia, a well-known and devout Catholic, does not, in fact, uphold a right to life. Many Christians do not. Perhaps most. They uphold something very different: a duty to live. In their eyes, we have a duty to live, no matter what. It's in God's hands
when a person dies. Suicides are not allowed to be buried on consecrated grounds in most of the major religions, which is one way suicide is discouraged by those religions. The basic gist of their message to those living in pain is: you have a duty to bear through it all, you owe this to your family, to neighbors and strangers and any who witness the course of your life. This duty must be held even in extreme suffering. You do not have — and must not take — a right to choose one's exit from life. Your duty is to do the best you can, to live.
The position is often a tangled one, especially in that most sensible Christians, even who hold to the duty, exclude extreme medical assistance to keep the body going. Many, many Christians (like many, many Buddhists and Muslims and atheists) instruct doctors not to revive them in cases of, say, heart failure, when it might be simple to start the body going again. The duty to live usually is placed in a natural
context, an extra-medical context. This is the humane side to the duty to live, as usually held.
Of course, in public discourse, this subtlety is often lost. And there are indeed many hectoring supporters of the right to life who seem to believe that keeping human bodies alive at all costs must be the default position of any reasonable society. This strikes me as utterly unreasonable, and in the case of Terry Schiavo, last year, it reached its ugliest extremities in political debate, with the alleged right to lifers
(duty-mongers) looking quite bad and quite unreasonable.
Many authoritarian moralities, like the Christian ones, are often predicated on the supremacy of duty, with obligations articulated without reference to beneficiary agents (that is, those with rights). For these traditionalist moralists, rights are not paramount; duties are.
Still, to promote rights is not to denigrate duty. Indeed, rights articulate duties. For every right there is at least one duty. Duties advocated without a context of rights, on the other hand, are mere burdens placed upon a person. Divorced of a beneficiary focus, such duties have difficulty as seeing any benefit, period. Which is why authoritarian moral systems prefer such duties: don't ask why, just do. In a sense, by stressing the beneficiary, rights also promote duty as a beneficial thing. And thus make morality bound closer to the intentions of purposive beings.
A right is something that a person can demand for himself, and that other persons may demand for others. Each duty specified by the right accrues a benefit to the rights-bearer. Those duties articulated without reference to rights often benefit only those who do the coercing. This aggrandizes those most dangerous of servants, those who may freely coerce. And it leaves them unanchored, unlimited in their powers. Only rights-anchored duties can be used to limit the burdens of duty, and thus limit tyranny in government. Rights, when generalized and universalized, are best formed in terms of negative duties, the duties of forbearance. Thus the regime of coercion has limits in the right to life's most common corollary, the right to liberty, specifying that the most basic duty for all is to not initiate force. A light burden, compared to the burdens imposed by more restrictive duty-centered ethics.
As I see it, seeing medicine's only legitimacy as in extending life comes from this viewpoint, of a duty to life. This is not my philosophy. I wish no one so much suffering that life must be held to at all costs.
The very idea of a duty to live
falls into the hands of busybodies and the police state. You are there to exist for them, and they are here to keep you going as long as possible, an exhibit in the much-ballyhooed parade of human suffering, which is somehow ennobling and . . . Ugh. People rightly worry about the possibility of some taking advantage of others in a context of liberty. They don't worry enough about how much institutions take advantage of the many in the context of hierarchy — and a rigid hierarchy is precisely what a duty-centered morality prescribes.
I suppose some people find this rigidity comforting. I'm sure Scalia does. But this comfort strikes me as its very opposite: horrific. And just plain vile. I prefer liberty, a much more respectful, restrained, even tame doctrine.
The right to life should actually be possessed by Americans, put into action in law, articulated and defended and supported by the whole legal system, including the Supreme Court. That would mean that some doctors should be allowed to assist the dying who wish a quicker end to a sometimes too-painful process. The right to life trumps any alleged prerogative of the government (particularly the federal government) to regulate drugs for the alleged benefit of individuals. A substance used as medicine, controlled, now, by law, enforced by regulators in the federal government, may legitimately be used to manage pain, yes. But it should also be used to manage pain
in an end-run around the horrific processes of disease and death, if the patient so desires. An overdose of a pain medication — or several different drugs in tandem — may end the pain and end the life, and the exact management of this is a medical enterprise. It is legitimated by the right to life, the right to liberty, and those who stand in the way of this are, by definition, tyrants. Tyrants who rule the lives of those most abject of humanity, the ill, pain-ridden, dying members of our society who really just want relief.
Fortunately, a creative (or perhaps merely lying) majority of the Supreme Court has prevented the three Catholics on the bench to play the role they seem to desire, tyrants over the dying. I would prefer an honest upholding of the right to life, however, along with a thorough rejection of the duty to live.
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