Law's Logic at the End of Life

 
 

To its detriment, Howard Ball’s new book on end-of-life law focuses more on the emotions and biases of the law’s defenders than on law’s history and content.

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The advances of modern medicine have produced decidedly mixed blessings. People live longer, but they also take longer to die after their bodies start to deteriorate. In the process they often suffer pain, and impaired abilities to enjoy life. And we die more often in hospitals than did earlier generations. A new book, At Liberty to Die: The Battle for Death with Dignity in America by Howard Ball calls readers to consider the challenges these realities raise.

Unfortunately, Ball only chronicles the history of two problematic solutions: legalized euthanasia and physician-assisted suicide. Ball’s account is interesting but incomplete. He ignores the growing evidence that legalization is actually a threat to patient wellbeing. More fundamentally, he overlooks the architecture of medical law, which protects both the interests that human beings have in their bodily integrity and the interests that states have in the lives of their citizens.

Ball begins with a clear-eyed account of death’s changing etiology in the United States. Because medical science has conquered many diseases that once took young lives, we increasingly live longer and die from chronic ailments. Quoting an academic paper on the medicalization of death, Ball states that “the average person ‘knows three years in advance what she will die of,’” and that we now “live facing death for a very long time.”

Ball invites his readers to reflect on the “troubling questions” these trends raise. But he places greater weight on these developments than they can bear. For example, Ball trades heavily on the little-understood condition known as persistent vegetative state (PVS). Ball suggests that patients in PVS are already dead, though their bodies retain some life-like appearance, and that recognizing a fundamental right to die is the sensible solution to their tragic plight.

But he does not mention that in recent years, doctors and scientists have observed patients who are diagnosed as being in PVS, yet are aware and in control of their brains. Through brain scans some of these patients can voluntarily communicate. These discoveries cast serious doubts on Ball’s account of what he calls “the twilight zone of the vegetative state.”

Because the book is an argument for a legal right to hasten death, the reader is surprised to find that Ball is profoundly confused about the law. Ball would ground the right to die in the “liberty clause” of the United States Constitution, to which he makes repeated reference. One might infer that he means the due process clause of the Fourteenth Amendment. But he takes care to distinguish the liberty to die, for which he finds support in Griswold v. Connecticut and Roe v. Wade, from the guarantees of the due process clause. (In Griswold and Roe the Supreme Court employed the due process clause to apply, against the states, newly discovered fundamental rights to contraception and abortion, respectively.)

As Ball accurately relates, Justice Thomas believes that physician-assisted suicide is not a legitimate medical purpose for dispensing controlled substances. Ball tries to contrast this opinion with Thomas’s earlier dissent from the Court’s ruling in Gonzales v. Raich that Congress may regulate marijuana under the commerce clause. Ball finds these opinions “perplexing.” But Justice Thomas has not contradicted himself. His modest view of the scope of the commerce clause does not require that he have a constrained view of federal statutory prohibitions against dispensing lethal drugs.

Ball correctly reports that the Court in Washington v. Glucksberg declined to recognize a fundamental right to assisted suicide or euthanasia because it found no support for such a right in our nation’s history and traditions. But he suggests that the justices—especially those on the “conservative” side of the “ideological divide”—refused to recognize a new right out of “extreme caution and a fear of the unintended consequences” of legalization.

The justices, however, were acting according to law. Long-established precedents require the Court to protect only those fundamental rights that are objectively and deeply rooted in the traditions and conscience of the American people, which are generally expressed in state and local laws.

Failing to identify the internal logic of the law, Ball understands adjudication as a political (or ideological) enterprise; it is all “subjective,” he asserts. Resolution is achieved after a “balancing of interests” based on “contradictory assessments” and “a number of standards—often contradictory.” Ultimately, he insists, “the judge is the final authority” who must, on a case-by-case basis, render a “new balancing of interests” in each case.

Throughout the book Ball assiduously tracks the supposed ideological biases of various federal judges who have decided end-of-life cases, and notes which presidents appointed them. His final assessment of Cruzan v. Director, Missouri Department of Health is that “in the U.S. Supreme Court, five votes beats four votes.”

Similarly, Ball portrays the defense of laws protecting human life as arbitrary, motivated by fear and religious zealotry. Those who advocate for life are, in Ball’s view, trying to impose their religious views on their fellow citizens. Throughout the book, Ball pits “powerful” religious actors against the “politically marginal,” who are motivated only by respect for personal autonomy.

So, for example, in the messy episode of Terri Schiavo’s death, he claims that those who advocated erring on the side of life acted contrary to clear scientific facts and fostered “nonrational . . . hysteria” (notwithstanding the uncertainty about Schiavo’s condition).

Ball also misapprehends the principles that have guided end-of-life law. Three basic principles have shaped its architecture: first, the principle of the inviolability of human life; second, the principle of bodily integrity; and third, the principle of double effect, a corollary of the other two. Far from contradicting each other, these principles work in concert to ensure that the liberty of all accords with the inherent dignity of all.

The inviolability principle does not require that all means of preserving life must be exhausted; it is not a principle of vitalism. Instead, it provides that it is always impermissible to extinguish a human life intentionally. The inviolability principle, which has served as the foundation of Western medical law and ethics since the time of Hippocrates, is not the exclusive inheritance of religious or conservative Americans, as Ball repeatedly asserts. As the Court affirmed in Glucksberg, state laws grounded in the inviolability principle reflect the states’ interest in the lives of their citizens.

The principle of bodily integrity protects a patient’s right to refuse unwanted touching. Under the rules derived from this principle, doctors may not administer treatment without the patient’s informed consent. The Court in Cruzan affirmed this principle even as it upheld a state law that required clear and convincing evidence of an incompetent patient’s desire to have life-sustaining treatment removed.

Ball understands the integrity principle as a “common law” right of “self-determination,” under which a patient has a “liberty to seek to be free from agony or a worthless life.” But the common law has always disfavored suicide, and freedom from unwanted touching has never entailed a right to a doctor’s assistance in an act of self-destruction.

Finally, Ball views the principle of double effect as a license to kill patients by palliative means. He asserts that palliative care is really the “secret practice” of euthanasia, which enjoys the support of the very groups that oppose legalization, such as the American Medical Association and the Roman Catholic Church.

There is nothing to this claim. The principle of double effect, which the Court endorsed in Vacco v. Quill, does not permit intentional killing. It delimits the circumstances in which it is permissible to accept death as an unintended side effect of an otherwise permissible action, such as administering palliation to a suffering patient.

Having failed to engage both end-of-life law and its guiding principles, Ball turns to the last resort of proponents of novel liberties, the so-called mystery of life passage from Planned Parenthood v. Casey. In that passage a plurality of justices enigmatically proclaimed, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” To the extent that this dictum means anything, it is surely wrong, as Michael Stokes Paulsen has demonstrated in a pair of essays on Public Discourse. Indeed, the Casey Court’s conception of personal autonomy is an easy target of criticism. But Ball appears not to have considered whether that criticism has any merit.

Ball’s book contrasts with two other books, published earlier this year, that shed considerable light on the role of law at the end of life.

Anyone interested in engaging the best arguments on both sides of the euthanasia debate would do well to read Debating Euthanasia, by Emily Jackson and John Keown.

For an explanation of the architecture and animating principles of medical law, one can do no better than Keown’s recent book The Law and Ethics of Medicine. Ball briefly mentions Keown, the Rose F. Kennedy Chair in Christian Ethics at Georgetown University. But rather than engage Keown’s arguments, Ball dismisses Keown as an “angry critic” of legalized assisted suicide. He does not explain this ad hominem attack. At Liberty to Die might have been a better book had Ball given as much consideration to the law and scholarly literature as he did to the putative emotions and motivations of medical law’s defenders.

Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and a 2012-2013 Visiting Fellow of the James Madison Program in American Ideals and Institutions at Princeton University.

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