Physician-assisted suicide and public virtue: a reply to the liberty thesis of "The Philosophers' Brief".

• Author: DuBois, James M.
• Position: Response to amicus brief included in this issue, p. 159

ABSTRACT: The "Philosophers' Brief," penned by six of today's most influential philosophers, was submitted as an amicus curiae brief to the Supreme Court as it prepared to consider the cases of Washington v. Glucksberg and Vacco v. Quill. It set precedent as the first such brief submitted by a group representing itself solely as moral philosophers. The brief became an overnight gold standard statement of the liberal philosophical understanding of the relationship of the State to so-called `private morality.' The main thesis of the brief is that physician-assisted suicide regards the deeply personal event of death, and that individuals have a constitutionally guaranteed fight to make decisions for themselves about the intimate details of their lives. In this article, James DuBois calls this the `liberty thesis,' and he argues that the briefs application of this principle is both contradictory and impracticable. The contradiction arises as the brief proposes restrictions on the fight to physician-assisted suicide--restrictions that require the State to abandon neutrality on intimate value judgments about life's worth. The impracticability arises insofar as the brief fails to leave room for a compelling State interest in promoting a minimal level of public virtue. Ironically, one of the strongest arguments that can be proffered on behalf of a State interest in preserving a minimal level of public virtue stems from its role in safeguarding human liberty.

"The Philosophers' Brief"(1) (PB) was submitted as an amicus curiae brief to the Supreme Court as the Court prepared to consider the cases of Washington v. Glucksberg(2) and Vacco v. Quill(3) It was signed by six of today's most well-known and productive philosophers: Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson. PB provided reasons why a constitutional right to physician-assisted suicide (PAS) should be recognized, and it urged that if it is not recognized, the Court ought at least to defer judgment, thus keeping the debate alive.(4) In his `Introduction' to PB, Dworkin observed that this brief set precedent: on no other occasion has a group intervened in a Supreme Court case "solely as general moral philosophers."(5) Within the field of health care ethics it became an overnight `gold standard' statement of the liberal philosophical understanding of the relationship of the State to so-called `private morality.' It has, for example, already found its way into the fifth edition of Arras and Steinbock's widely-used textbook, Ethical Issues in Modern Medicine.(6) Within law reviews the most attention it has received to date is from those generally opposing the idea that Justices should regard the opinion of philosophers when deciding cases.(7) One commentator went so far as to claim approvingly that in the Supreme Court cases under consideration, the Justices "ducked the philosophical issue[s]" and that "the moral issue[s] dissolved in the judicial consideration of the euthanasia cases.(8) However, Dworkin's reply seems nearer the mark:

The main moral claims of [the Philosophers'] brief were, first, that competent dying individuals have, in principle, a right to decide for themselves how to die, and second that even if recognizing that right would to some degree increase the risk that other patients would be pressured into choosing death against their will, that increased risk does not justify refusing to recognize the right at all. None of the Justices `ducked' both of these claims--three of them decided against our position on the first and five on the second.(9) Although the Supreme Court already decided the PAS cases, a critical discussion of the main thesis propounded by PB remains relevant. (The main thesis of PB is described below as the `liberty thesis.') First, as a legal decision, the Supreme Court's decision said nothing about the ethical status of the `liberty thesis' propounded by the brief--and PB has invoked it as a principle both of jurisprudence and of morality. (Hence, its popularity within literature in health care ethics). Second, the Supreme Court effectively threw the issue to the states to decide, and already the liberty thesis has played an important role in the argumentation of one state supreme court case considering PAS.(10) Finally, as Dworkin noted both in the passage quoted above and elsewhere,(11) more than half of the Supreme Court Justices in fact did not reject the liberty thesis in Washington v. Glucksberg.(12) Justice Souter explicitly stated that the liberty interest at stake in PAS might prove to be `fundamental,' thus requiring that limitations be subjected to `strict scrutiny.' He added that the Court might well revisit the issue of PAS in the future, after experimentation at the state level--experimentation that has already begun.(13)

PB touches upon a number of philosophical and political issues that will not be examined in this article. For example, PB challenges the moral relevance of the distinction between killing and letting die, just as it challenges legislation that would blanketly prohibit an action based on empirical considerations of the sort provided by so-called `slippery slope' arguments.(14) This article will instead focus on the main moral and jurisprudential claim of the brief. The central claim is that "every competent person has the right to make momentous personal decisions which invoke fundamental religious or philosophical convictions about life's value for himself."(15) PB maintains that this thesis has been unambiguously embodied into Constitutional law via the so-called `Casey right.' This alleged right was formulated in 1992 by the Supreme Court. It reads as follows: "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."(16) This right was viewed as stemming from the liberty protected by the Fourteenth Amendment, and from it in turn stemmed the justification for the legal protection of abortion provided in Planned Parenthood v. Casey.(17) Some have argued that the Casey decision did not really enumerate a new right, but rather the statement was made incidentally (obiter dicta). They argue that "[a] cautious and judicious interpretation of Casey seems especially appropriate in light of the fact that the Casey Court in fact trimmed back the right declared in Roe v. Wade."(18) Others have claimed that the so-called Casey right is similar to our right to religious freedom: it is a broad-sweeping principle whose content is vague and criteria for application still vaguer.(19) While PB differs from these views insofar as it sees the Casey fight as a clear and far-reaching, constitutionally guaranteed fight, it differs even more significantly insofar as it takes a normative approach to the fight. It claims that at the foundation of the Casey right is a broad moral principle according to which society should be structured. PB invokes this broad moral principle precisely in order to prevent matters of "private morality" from entering into legislation. Thus, the very first two lines of the introductory paragraph of PB read:

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. On the contrary, they ask the Court to recognize that individuals have a constitutionally protected interest in making those grave judgments for themselves, free from the imposition of any religious or philosophical orthodoxy by court or legislature.(20) This view which we find expressed in Casey and throughout PB, will be called alternately the `Casey right' or `the liberty thesis.' This article will argue that PB's development and use of the liberty thesis: (a) rests on a naive view of what is public, rather than private; (b) suggests necessary restrictions on PAS that will force the state to abandon neutrality precisely in the realm where the liberty thesis insists on neutrality; and (c) presupposes a naive view of human nature and of law which may make it ultimately impracticable.

On State Interests, Private Morality, and Things Intimate

Whatever one is to make of the claim that PAS belongs to the realm of private morality, PAS should be of concern to public morality and it falls squarely within the realm of what may be legitimately governed by legislation. In order to make this point, it is important first to clarify what is meant when PB calls PAS a matter of private morality. Although somewhat academic, it is worth considering three common meanings of `private morality.'

1. Private in the sense of being the moral conviction of a fallible individual. This sense is embodied in the subjectivist mantra, "That's just your opinion." Taken to its subjectivist extreme, all moral judgments are private in this sense, and the state ought to follow a libertarian or laissez-faire path to the greatest extent possible.

2. Private in the sense of being a moral belief not based on `natural reason', which one therefore might not reasonably expect all persons to hold. Examples include those moral beliefs that derive from the content of a particular religious faith (say, the Catholic belief that one ought to go to Mass on Sundays).

3. Private in the sense of concerning things that belong to an `intimate' sphere, e.g., one's religious or sexual acts as opposed to one's acts of driving a car or grocery shopping.

The first sense of private is clearly not what PB has in mind in suggesting that private morality should not be the content of legislation. Although PB spends a fair amount of time citing statistics intended to demonstrate public support for PAS, it seems committed to the idea that the role of the Constitution is precisely to guarantee certain rights and liberties regardless of what masses...