Text for Sandel: Last Rights

Last rights

Michael J Sandel. The New Republic. Washington: Apr 14, 1997.Vol.216, Iss. 15;  pg. 27, 1 pgs

The Supreme Court will soon decide whether terminally ill patients have a constitutional right to physician-assisted suicide. Most likely, the Court will say no. Almost every state prohibits suicide, and in oral arguments earlier this year the justices voiced doubts about striking down so many state laws on so wrenching a moral issue.

If the Court rules as expected, it will not simply be overruling the two federal courts that declared suicide a constitutional right. It will also be rejecting the advice of six distinguished moral philosophers who filed a friend of the court brief. The authors of the brief comprise the Dream Team of liberal political philosophy-Ronald Dworkin (Oxford and NYU), Thomas Nagel (NYU), Robert Nozick (Harvard), John Rawls (Harvard), Thomas Scanlon (Harvard) and Judith Jarvis Thomson (MIT) .

At the heart of the philosophers' argument is the attractive but mistaken principle that government should be neutral on controversial moral and religious questions. Since people disagree about what gives meaning and value to life, the philosophers argue, government should not impose through law any particular answer to such questions. Instead, it should respect a person's right to live (and die) according to his own convictions about what makes life worth living.

Mindful that judges are reluctant to venture onto morally contested terrain, the philosophers insist that the Court can affirm a right to assisted suicide without passing judgment on the moral status of suicide itself. "These cases do not invite or require the Court to make moral, ethical, or religious judgments about how people should approach or confront their death or about when it is ethically appropriate to hasten one's own death or to ask others for help in doing so," they write. Instead, say the philosophers, the Court should accord individuals the right to make these "grave judgments for themselves, free from the imposition of any religious or philosophical orthodoxy by court or legislature."

Despite their claim to neutrality, the philosophers' argument betrays a certain view of what makes life worth living. According to this view, the best way to live and die is to do so deliberately, autonomously, in a way that enables us to view our lives as our own creations. The best lives are led by those who see themselves not as participants in a drama larger than themselves but as authors of the drama itself. "Most of us see death ... as the final act of life's drama," the brief states, "and we want that last act to reflect our own convictions.... The philosophers speak for those who would end their lives upon concluding that living on "would disfigure rather than enhance the lives they had created." Citing the Court's language in a recent abortion case, Planned Parenthood v. Casey (1992), the philosophers stress the individual's right to make "choices central to personal dignity and autonomy." Such freedom includes nothing less than "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

The philosophers' emphasis on autonomy and choice implies that life is the possession of the person who lives it. This ethic is at odds with a wide range of moral outlooks that view life as a gift, of which we are custodians with certain duties. Such outlooks reject the idea that a person's life is open to unlimited use, even by the person whose life it is. Far from being neutral, the ethic of autonomy invoked in the brief departs from many religious traditions and also from the views of the founders of liberal political philosophy, John Locke and Immanuel Kant. Both Locke and Kant opposed a right to suicide, and both rejected the notion that our lives are possessions to dispose of as we please.

Locke, the philosopher of consent, argued for limited government on the grounds that certain rights are so profoundly ours that we cannot give them up, even by an act of consent. Since the right to life and liberty is unalienable, he maintained, we cannot sell ourselves into slavery or commit suicide: "No body can give more Power than he has himself; and he that cannot take away his own Life, cannot give another power over it."

For Kant, respect for autonomy entails duties to oneself as well as others, most notably the duty to treat humanity as an end in itself. This duty constrains the way a person can treat himself. According to Kant, murder is wrong because it uses the victim as a means rather than respects him as an end. But the same can be true of suicide. If a person "does away with himself in order to escape from a painful situation," Kant writes, "he is making use of a person merely as a means to maintain a tolerable state of affairs till the end of his life. But man is not a thing-not something to be used as a means: he must always in his actions be regarded as an end in himself." Kant concludes that a person has no more right to kill himself than to kill someone else.

The philosophers' brief assumes, contrary to Kant, that the value of a person's life is the value he or she attributes to it, provided the person is competent and fully informed. "When a competent person does want to die," the philosophers write, "it makes no sense to appeal to the patient's right not to be killed as a reason why an act designed to cause his death is impermissible." Kant would have disagreed. The fact that a person wants to die does not make it morally permissible to kill him, even if his desire is uncoerced and well-informed.

The philosophers might reply that permitting assisted suicide does no harm to those who find it morally objectionable; those who prefer to view their lives as episodes in a larger drama rather than as autonomous creations would remain free to do so.

But this reply overlooks the way that changes in law can bring changes in the way we understand ourselves. The philosophers rightly observe that existing laws against assisted suicide reflect and entrench certain views about what gives life meaning. But the same would be true were the Court to declare, in the name of autonomy, a right to assisted suicide. The new regime would not simply expand the range of options, but would encourage the tendency to view life less as a gift and more as a possession. It might heighten the prestige we accord autonomous, independent lives and depreciate the claims of those seen to be dependent. How this shift would affect policy toward the elderly, the disabled, the poor and the infirm, or reshape the attitudes of doctors toward their ailing patients or children toward their aging parents, remains to be seen.

To reject the autonomy argument is not necessarily to oppose assisted suicide in all cases. Even those who regard life as a sacred trust can admit that the claims of compassion may sometimes override the duty to preserve life. The challenge is to find a way to honor these claims that preserves the moral burden of hastening death, and that retains the reverence for life as something we cherish, not something we choose.