As a result of a court ruling requiring clarification of the law, the UK's Director of Public Prosecutions (DPP), Keir Starmer, yesterday issued some guidelines concerning the legal grey area of assisted suicide. The DPP published a list of factors that will weigh in favour of and against prosecutions for assisted suicide.
Care Not Killing (CNK), a UK umbrella group for organisations and individuals that oppose legalising assisted suicide and euthanasia, says that under the new guidelines:
This kind of objection crops up frequently to laws that make special provision for some groups of people and not others. But does it hold up to scrutiny here? The guidelines do not state that the terminally ill, severely and incurably disabled, and those suffering a severe degenerative physical condition (hereafter, for brevity: The Unfortunate) are less deserving of anything than others, so if they do indeed imply that The Unfortunate are less deserving of the law's protection than others, it must be because the DPP's justification for the guidelines presupposes this judgment.
CNK seems to envisage the DPP as having in mind a justification for this element of the guidelines that is something like this:
1. The Unfortunate are intrinsically worth less than others.
Therefore,
2. The Unfortunate are less deserving of the law's protection than others.
Therefore,
3. Prosecution for the assisted suicide of The Unfortunate ought to be less likely.
That argument explicitly states that The Unfortunate are less deserving of the law's protection than others. But it would obviously not be a very good argument. In addition, it would give the DPP equal reason to provide for selective enforcement of all kinds of laws with respect to The Unfortunate, such as those against robbery, assault and molestation. Since there is no evidence that the DPP favours any such measures, we should look for a more plausible argument to attribute to him. It is reasonable to think that the DPP is motivated by the thought that The Unfortunate have a special right to assisted suicide, or that they are in a special position to benefit from it. So here is an alternative possible justification for the new guidelines:
4. Assisting suicide ought not to be prosecuted if it is motivated purely by the aim of assisting in ending a life has been reasonably judged by the assisted to be not worth living further.
5. The Unfortunate are more likely than others to have lives that they can reasonably judge to be not worth living further.
Therefore
6. The fact that someone is one of The Unfortunate ought, all things being equal, to make prosecution for assisting in their suicide less likely, when the assistant's motivation is purely to assist in ending a life that the assisted has judged to be not worth living further.
The argument 4-6 seems to offer a prima facie plausible justification for the new guidelines, so it does not seem unreasonable to think that the DPP had either this argument or something similar to it in mind. Note that since assisted suicide by definition involves a person requesting to be helped to die, the argument does not promote the indiscriminate killing nor non-voluntary euthanasia of those whose lives could reasonably be judged by others to be no longer worth living, nor does it imply that any such judgments are even possible. Does the argument 4-6 still have the implication that The Unfortunate are less deserving of the law's protection than others are?
CNK might attempt to argue that the implication can be derived from either premise 4 or premise 5, so let's examine these premises in turn. Premise 4 is a claim about when something that is technically a crime ought not to be prosecuted. A good reason for making such an exception is that the law proscribes doing something that people have a moral right to do. So premise 4 could be based on the idea that people have a moral right to decide whether they will continue to live based on their reasonable judgments about whether their lives are worth living further, and others have a moral right to assist them in carrying out those decisions, so long as their motivation is purely compassionate. These points would not imply that those with lives that they reasonably judge not worth living are any "less deserving of the law's protection", but rather that they have a moral right that deserves special legal recognition.
Premise 5 is a claim about which lives can be reasonably judged to be not worth living by the persons living them; it claims that this feature is correlated with being one of The Unfortunate. Note that the relevant judgment only concerns the worth to an individual of their own continued life – it is not about the intrinsic worth of the person themselves from the point of view of other people. "My (continued) life is not worth living" is in this sense a judgment of the same logical form as "My dinner is not worth eating", which predicates something about the worth of my dinner, and stands in contrast to "Your hand is not worth shaking", which predicates something of you and your person, rather than just of your hand. By distinguishing these kinds of judgment we can see that premise 5 makes no comment about the worth of any individual person. Since it makes no such comment, no implications about desert can be drawn from it.
CNK might well deny premise 5 beause they hold the view that no life can be reasonably judged to be not worth living further by the person living it; indeed I think that that view is probably the fundamental source of their opposition to assisted suicide. It is difficult to see how the view can be sustained absent a religious foundation, given the incurable pain and suffering that some people have to endure in virtue of their illnesses. If they do object to argument 4-6 on this basis, though, then CNK should openly engage in that debate rather than muddying the waters by imputing far more dubious motives to those they seek to oppose.
Links:
Care Not Killing
http://www.carenotkilling.org.uk/
Dignity in Dying
http://www.dignityindying.org.uk/
Press Release: "DPP publishes interim policy on prosecuting assisted suicide"
http://www.cps.gov.uk/news/press_releases/144_09/
Simpler: Assisted suicide is very hard to distinguish from murder. If the social system has a strong interest in preventing unjustified homicide, the fewer defenses to a charge of murder the better the deterrence (a frequently heard argument against the insanity defense). So, consent has never been a good defense to homicide in general. Is there a difference made by the special context of assisted suicide: a physician, possibly a hospital or clinical setting, witnesses and a special and limited consent ritual? The odds seem to tilt against ritualized murder, but there is still the case of the inconvenient or expensive-to-maintain dependent that must puzzle investigators. I suppose that this kind of thinking leads you to allow assisted suicide if you think it does not seriously affect the ability of the state to prevent murder.
The other arguments, including ones based on “intrinsic” worth seem to go nowhere. The concept of “intrinsic” worth is without content. It is simply a label used to support an otherwise insupportable argument (e.g. with respect to the worth of members of disfavored groups). Worth, like better or worse, good or bad, depends on some reference to function. So, it is nonsense to say that X is a bad person without saying something about what he’s bad at (e.g. behavior, athletics, cooking).
I recall an argument made a long time ago against a court’s allowing a severely disabled person to die with the help of a physician. The argument was: Allowing her death devalues the lives of persons who have such disabilities. In other words, I get to block her choice to die solely on my desire to feel good about myself. Such arguments tend to make me come down more than usually strongly on the side of individual rights, including the right to die.
Thanks for your comment, Dennis. I’m not sure whether worth depends on “some reference to function” in the sense you seem to have in mind. Isn’t it intelligible to say that a human being is morally intrinsically worth more than a snail without cashing this out as a matter of having more or better functions? I’m inclined to think that a human being is morally intrinsically worth more than a snail, and to think that this fact is not reducible to the human being’s having greater cognitive capacities, speed and agility, or whatever, relative to the snail.
Anyway, the point I made in my post was that even if every human being has infinite intrinsic moral worth, and even if it would be unreasonable to judge otherwise, the point has absolutely no bearing on the claim relevant here – that some people can reasonably judge their continued lives to be not worth living. The distinction is between the value of a person and the value of a thing that the person might have.
Simon: OK, I suppose you can talk about “intrinsic” worth if you want to nail something down as of unquestioned high value, as a kind of anchor to a general idea of a good society. So, for example, human life is intrinsically valuable because that anchors a system of ordered liberty and protection of individual rights and property values against power — especially democratic government. In the same way apartheid needs an idea of “intrinsic” worthlessness of particular kinds of humans in order to make the apartheid system work.
Dennis, your reply is just guilt by association.
No, I was just using two examples, one good (association of intrinsic worth with liberal politics) and one bad (ascription of intrinsic worth/worthlessness to support apartheid). I was in fact admitting that the concept of “intrinsic worth” has utility. Just because it’s utility is itself value-free doesn’t mean I was ascribing any attitudes or guilt.
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