Bioethics @ TIU

Can there be a “Right to Die?”

Posted January 21st, 2016 by Jon Holmlund

I generally give 5 reasons for opposing physician-assisted suicide (PAS), which is commonly recommended by its advocates by invoking the notion of a “right to die”:  it destroys the soul of medicine as the profession dedicated to healing; it deflects attention from palliative care; it rests on a very slippery slope; a right to die implies a reciprocal duty to kill; and the notion of a right to die itself is problematic if not incoherent.

I want to focus a bit on this last argument here.  I am most familiar with it from the work of Leon Kass, who expanded the argument in chapter 7 of his 2002 book Life, Liberty, and the Defense of Dignity.  Kass holds that a “right to die” is groundless, philosophically and legally.  I turn to his philosophic argument in this post.  I’ll address the legal argument next week.

In rejecting a right to die, Kass is not referring to the right to refuse treatment, which he regards indisputable, or a right to commit suicide “all by oneself,” which he regards debatable at best.  Rather, he construes a right to die “in its most radical intention as a right to become dead, by active means and if necessary with the assistance of others.”  He writes that a claim to a right to die is best understood as asserted not as a “liberty right” against those who would deny it, nor as a “welfare right” against people unwilling to provide the means, but as a demand against the ill fate of suffering or a debilitating condition—a sort of “tort claim against nature,” as it were.

A right to die cannot be a natural right, of the sort that Hobbes and Locke wrote about, because such rights are given by nature, and the most fundamental natural right is the right to life, presupposing a “self-interested attachment to our own lives.”  All other natural rights rest on the right to life, and a “right to become dead” cannot be an exercise of a faculty, necessity, or aspiration of life.

A right to die cannot be of the sort that Kant envisioned, grounded not in nature but in reason, because Kant held a willful act of self-destruction to be self-contradictory.  “Autonomy” for Kant meant something like “self-legislation,” requiring “acting in accordance with…one’s rational will determined by a universalizable, that is, rational maxim…not being a slave to instinct, impulse, or whim, but rather doing as one ought, as a rational being.”  And as Kant himself wrote (quoted by Kass), “To destroy the subject of morality in his own person is tantamount to obliterating from the world, as far as he can, the very existence of morality itself; but morality is, nevertheless, an end in itself.  Accordingly, to dispose of oneself as a mere means to an end of one’s own liking is to degrade the humanity in one’s person (homo noumenon), which, after all, was entrusted to man (homo phaenomenon) to preserve.”  That is: humans have a rational duty to preserve humanity, which entails living in accordance with rational moral precepts enacted by autonomous rational beings.  Kill the autonomous rational being and poof: you vaporize the foundation of ethics itself.

Not that this isn’t where contemporary humanity is headed anyway, and on purpose at that.  To claim a right to die, Kass argues, requires that it be understood in the “willful modern meaning” in which the autonomous, Nietzschean self finds true meaning in “unconditioned acts of pure creative will.”  But this approach also fails, because at most it can be an expression, a cry, of wanting to be done with this life—a legitimate emotion in some cases, it must be admitted.  The “willful modern” approach cannot support a right to have someone else’s assistance in dying (implying a limit on the other person’s autonomy), and my autonomy cannot support another person’s right to kill me or help me die.  Here, Kass’s argument seems to revert to the concern that a right entails someone else’s duty.

The “willful modern” approach requires one to be mentally competent (as, to be sure, PAS laws attempt to ensure), but cannot support proxies or “advance directives” of the sort that Courtney Thiele cautioned about this week.  And should that proxy not be chosen by the person, it is self-contradictory to think that proxy could exercise the patient’s right of autonomy.  And, finally, it is “at least paradoxical to say that our autonomy licenses an act that puts our autonomy completely out of business.”

If a “right” is just the unbridled will of the creative self, then Kass, quoting Harvey Mansfield, says that self is “open-ended…[and} cannot have interests; for who can say what is in the interest of a being that is becoming something unknown?   [The result is a society] characterized by a loss of predictability and normality; no one knows what to expect, even from his closest companions.”

In a word:  chaos.

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