Dialogical Personhood vs. Autonomy in End-of-Life Decision: A Suggestion for Alabama Lawmakers.

• Author: Blake, Andrew

1. INTRODUCTION

   Modern bioethics and jurisprudence have eschewed metaphysics and lost a true understanding of personhood. (1) A perilous insistence on human autonomy has led to a near complete forgetting of "the locus of personal presence" found in the relational nature of the human person. (2) The individual and his or her choices are seen as the ultimate good. (3) Because individuals are so varied and atomized in the present culture, relativism reigns, and dialogue about greater human purpose is nonexistent in public discourse. (4) Major medical decisions have therefore shifted towards an understanding of personhood that focuses on human capacities, such as awareness and reason. (5) However, a true understanding of human personhood requires much more.

   The current laws of most states allow patients to refuse medical treatment or have unwanted treatment withdrawn when death is imminent and treatment futile--an understanding that is premised in part upon a robust vision of personal autonomy. (6) Alabama is among those states that, by law, allow for refusal and withdrawal of unwanted treatment. (7) In and of itself, as this paper argues, the right to refuse unwanted medical treatment is not incorrect or morally wrong. (8) However, such an allowance should not be based solely upon autonomy, as it is an insufficient and inadequate framework for end-of-life choices. This paper argues that end-of-life issues are morally and philosophically serious and deserving of metaphysical and theological reflection on the meaning of human life and that a theologically and philosophically informed approach to human personhood and community should replace the autonomy framework. (9) Based upon this broader understanding, it proposes legislation that would amend Alabama's law to reflect a policy stance that better recognizes and protects personhood in end-of-life decision-making. (10)

   An exploration of the emergence of autonomy in case law and bioethics will set the groundwork for theological and philosophical corrective. (11) In exploring autonomy in bioethics, it will examine the place of autonomy as a key tenet of principlism in bioethics. (12) Because legal and bioethical thought has largely lost sight of any transcendent and robust understanding of personhood, bioethics must regain the foundations of personhood. This paper studies the Early Church Fathers in the Christian tradition and their thought to gain a fuller understanding of personhood based upon their reflections on the doctrines of God as Trinity and the divine and human natures of Christ. (13) The communitarian bioethical approach to personhood as relational rather than radically individual offers a modern framework for patristic personhood and is echoed in the feminist ethics of care. (14) This paper will propose amendments to provisions of the Alabama Code to reflect this communitarian and relational understanding in policies applicable to end-of-life decision-making. (15)

2. BACKGROUND

   1. Emergence of Autonomy in Case Law

      Individual liberty is a quintessential tenet of American law and social life. The Declaration of Independence enshrines "Life, Liberty and the pursuit of Happiness" as "unalienable." (16) Moreover, woven into the federal Bill of Rights are a number of rights related to privacy, including the right "to be secure in [our] persons, houses, papers, and effects" (17) and the due process of law protection of life and liberty. (18)

      However, it was not until the end of the nineteenth century that Samuel Warren and Louis D. Brandeis conceived a general constitutional right to privacy. (19) In 1890, in their Harvard Law Review article, Warren and Brandeis argued against journalistic intrusion into private affairs. (20) Their proposed solution was a right, which they deemed to be "the right to an inviolate personality." (21) Their choice of wording was an important rhetorical step towards an autonomy-based right to privacy as the definition of inviolate shows. To be inviolate is to be "uninjured, unimpaired, unbroken." (22) Therefore, an "inviolate personality" is an unimpaired expression of one's person. A little more than a decade later, in 1905, the Minnesota Supreme Court in Mohr v. Williams introduced this right to an inviolate personality--although it did not refer to it as such--into the law of tort in the context of battery. (23) Although the Supreme Court of Minnesota did not directly reference the work of Warren and Brandeis in its opinion, it did hold that "every person has a right to complete immunity of his person from physical interference of others." (24) Thus, the right to be free from unwanted interference was introduced and, over time, became entrenched in the common law. Moreover, Mohr--as will be seen--was an early victory in the battle bodily autonomy won later in the century.

      However, the United States Supreme Court did not begin to examine governmental interference into the private lives of citizens until a few decades later. In Meyer v. Nebraska and Pierce v. Society of Sisters, the Court determined that state interference in the schooling of children--the banning of non-English language studies and the requirement that children attend public schools, respectively--wrongfully impacted the right of privacy found in family decisions. (25) The notion that civil government cannot interfere in certain private, fundamental choices--such as directing the education of one's children--was only the beginning of the Court's right to privacy jurisprudence. The ultimate flowering of this doctrine--and the slow march towards radical autonomy-occurred as the Court began to address what it would find to be constitutional issues concerning bodily rights and sexuality. (26)

      The preeminent bodily right the Court has addressed is the right to make procreation choices. (27) Ironically, considering the Court's later and greater focus on the right not to procreate, the Court first dealt with this issue in determining that procreation is "fundamental to the very existence and survival of the race." (28) Although the Skinner v. Oklahoma decision was largely concerned with the equal protection rights of inmates facing forced sterilization, the Court did create a constitutional interest in marriage and procreation that would lead to an explicit finding that certain sexual matters are included within the right of privacy. (29)

      The year before Roe v. Wade was decided, the United States Court of Appeals for the District of Columbia ("D.C. Circuit"), in Canterbury v. Spence, echoed one of Justice (then Judge) Benjamin Cardozo's weightiest declarations in the important informed consent case Schloendorff v. Society of New York Hospital: "[t]he root premise [of bodily autonomy] is the concept, fundamental in American jurisprudence, that '[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.'" (30) Similarly, a few years before Canterbury, the Supreme Court discovered a right to contraceptives in its 1965 case Griswold v. Connecticut: (31) Although a logical step towards Roe by decision alone, Justice Douglas's attempt to finally define the "right of privacy" made a major contribution to the development of autonomy as a constitutional principle generally and to the Court's substantive due process jurisprudence specifically. Writing for the Court, Justice Douglas reasoned that various rights recognized within the Bill of Rights create "zones of privacy," caused by "penumbras" and emanation" in various amendments that protect deeply personal private acts. (32) However, Justice Douglas's constitutional explanation of privacy rights highlights the nebulous nature of autonomy and privacy. (33) That which is half illumined cannot fully account for so great a right.

      Finally, as the jurisprudential expression of, and preference for, bodily privacy and autonomy grew in the preceding years, the Court paved the way for its Roe decision. Following an enumeration of the various rights protected by the right to privacy, the Court held that the "Fourteenth Amendment's concept of personal liberty" (34) and the right of privacy include a woman's right to terminate a pregnancy during the first trimester. (35) However, the Court's decision did not recognize an absolute privacy rig ht, (36) and it refused to find that pregnant women can "be isolated in [their] privacy." (37) The Roe decision limits--and the later Planned Parenthood v. Casey decision all the more so--a woman's ability to obtain an abortion, holding that the right to choose is "not unqualified and must be considered against important state interests." (38) A state's interest in preserving potential life becomes compelling at the point of fetal viability; (39) but, under the Roe framework, the application of the strict scrutiny standard (40) and the refusal to acknowledge fetuses as persons, (41) would together make it difficult to find for the state. Under Roe, autonomy is not wholly victorious, not even in a case generally seen as standing for the very principle in its absolute form.

      The same reluctance to embrace absolute autonomy is also found at the end of life. In Cruzan v. Missouri, (42) the Court was primarily concerned with whether a state could constitutionally require family members or guardians to show clear and convincing evidence that an incompetent patient would choose to withdrawal treatment and nourishment. (43) However, the question of individual autonomy loomed in the background. The issue was after all a matter of what the patient would have wanted to do had she been in a position to choose for herself. In its holding, the Court approved the state law; however, the Court's conclusion regarding the constitutional right to choose in the first place was more open-ended. (44) The Court did nothing more than "assume that the United States Constitution" provided a competent patient the "right to refuse lifesaving hydration and...