Brandeis University, Philosophy Department
Fall 2004
Brandeis University Web Stite

Philosophy 1A

Introduction to Philosophy

Professor Andreas Teuber
Prof. Teuber


PAPER TOPIC IV


Active vs. Passive Euthanasia:
Is There a Moral Difference?

Quinlan, Cruzan and James Rachels' Argument
in The New England Journal of Medicine

"Killing is not in itself any worse than letting die;
if my contention is right, it follows that active
euthanasia is not any worse than passive euthanasia."

- James Rachels, New England Journal of Medicine

.

Drawing on the reading and your own sound reasoning and good judgment, make a case for or against James Rachels' argument, originally published in The New England Journal of Medicine (1975) and reprinted in the reading for the course under the title "Active and Passive Euthanasia" in REASON AND RESPONSIBILITY, pp. 650-53 and in a PDF FILE online that "there is a morally relevant difference between active and passive euthanasia only if there is a morally relevant difference between killing and letting die. But," he argues, "there is no such difference. Therefore if, as most people assume, passive euthanasia is morally acceptable (when voluntarily undertaken), then so too is active euthanasia." Think of several strong obejctsions to your argument and respond to them.

In coming up with an argument one way or the other it may be helpful to consider two fairly well-known actual cases, the case of KarenQuinlan and that of Nancy Cruzan. Excerpts from the court decisions have been reproduced on the following pages. In arriving at your own conclusion about the James Rachels argument, feel free to vary either one or both of these cases to "test" your intuitions. From a moral point of view, do you agree or disagree with the court's decision in each case? Focus on those aspects of the cases that help you sort out your view vis--vis the Rachels argument. Some aspects may appear to you to be irrelevant. Imagine, too, that both Karen Quinlan and Nancy Cruzan had expressed a clear wish to die if they were ever thrust into a situation in which they were in when the court heard their caes. Assume, in other words that both had, by whatever means you believe to be sufficient, given their informed consent to die and that such consent was valid on whatever grounds you require for consent to be valid. With this variation does your opinion of the ruling in either case change? If so, why? If not, why not?

Given the question at hand, you may wish to vary these cases in other ways as well. Take the Quinlan case, for example. The court rules in her case that her doctors could "withdraw" her "present life support system" if there were "no reasonable possibility of Karen's ever emerging from her present comatose condition to a positive, sapient state" and that were such an action to be taken under these circumstances no "civil or criminal liability" would befall "any participant, whether guardian, physician, hospital or others." But, as you may know, when Karen Ann Quinlan was transferred to a nursing home, she was removed from the life support machinery but "she did not die." She continued to "live" for some time in a vegetative state, only dying on June 11, 1985, more than nine years after her case was decided on March 31st of 1976.

The court opined that the doctors could "remove" her life support system with the full understanding that withdrawal of life support would lead to her death. It did not. Why not permit the doctors then to administer a lethal injection to Karen?

The court authorized the doctors to let Karen to die. It did not authorize them to kill her. But it is this distinction, this very distinction between killing and letting die, that James Rachels argues in his article in The New England Journal of Medicine is a distinction that makes a moral difference.

Now as many of you are aware, the argument has been made, by the Solicitor General, for instance, in his brief before the United States Supreme Court in the Cruzan case, among many others, "that though government may not prevent a doctor from discontinuing life support if the patient insists, it may absolutely prevent him, in any and all circumstances, from prescribing lethal pills the patient requests, because in the former situation the doctor only omits to take action that could save life while in the latter he positively contributes to causing death."

But Rachels disagrees! He argues that a decision to allow the patient to die in this case as opposed to intervening to hasten the patient's death makes no moral difference! What do you think? Do you agree or do you disagree? Why?

In making your case the reading may help, the readings and handouts on moral theory as well as some of the readings on "ethical problems," Judith Thomson's "Defense of Abortion" and Don Marquis' "Argument that Abortion Is Wrong." Reading the two together will give you an idea about how philosophers argue for and against contemporary moral issues. So, too, you may find some of the other "cases" that we discussed in class helpful in clarifying your views. Here I am thinking about the handouts on "Baby Theresa," "John on a Botany Expedition in the Amazon" and Michael Levin's "Case for Torture," to choose but three examples.

In defending your position, offer what you believe are the most principled arguments you can make. In thinking of objections to your opinion, think of the best possible objections that someone on the other side might be able to come up with, i.e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive.

Papers should be between five (5) and seven (7) pages in length or longer if you wish. They are due on Monday, December 20th by 4:00 PM in the Philosophy Department Main Office in Rabb 305. Please submit two copies, marked "COPY #1" and "COPY #2.".



In the Matter of Quinlan (1976)
70 N.J. 10, 355 A. 2d. 647

EXCERPTS [footnotes removed]

For the Complete Opinion w/ notes and references Online Click HERE.




OPINION: THE LITIGATION

The central figure in this tragic case is Karen Ann Quinlan, a New Jersey resident. At the age of 22, she lies in a debilitated and allegedly moribund state at Saint Clare's Hospital in Denville, New Jersey. The litigation has to do, in final analysis, with her life, -- its continuance or cessation, -- and the responsibilities, rights and duties, with regard to any fateful decision concerning it, of her family, her guardian, her doctors, the hospital, the State through its law enforcement authorities, and finally the courts of justice.

Due to extensive physical damage fully described in the able opinion of the trial judge, Judge Muir, supporting that judgment, Karen allegedly was incompetent. Joseph Quinlan sought the adjudication of that incompetency. He wished to be appointed guardian of the person and property of his daughter. It was proposed by him that such letters of guardianship, if granted, should contain an express power to him as guardian to authorize the discontinuance of all extraordinary medical procedures now allegedly sustaining Karen's vital processes and hence her life, since these measures, he asserted, present no hope of her eventual recovery. A guardian ad litem was appointed by Judge Muir to represent the interest of the alleged incompetent.

THE FACTUAL BASE

An understanding of the issues in their basic perspective suggests a brief review of the factual base developed in the testimony and documented in greater detail in the opinion of the trial judge. In re Quinlan, 137 N.J. Super. 227 (Ch. Div. 1975).

On the night of April 15, 1975, for reasons still unclear, Karen Quinlan ceased  [**654]  breathing for at least two 15 minute periods. She received some ineffectual mouth-to-mouth resuscitation from friends. She was taken by ambulance to Newton Memorial Hospital. There she had a temperature of 100 degrees, her pupils were unreactive and she was unresponsive even to deep pain. The history at the time of her admission to that hospital was essentially incomplete and uninformative.  [***11] 

Three days later, Dr. Morse examined Karen at the request of the Newton admitting physician, Dr. McGee. He found her comatose with evidence of decortication, a condition relating to derangement of the cortex of the brain causing a physical posture in which the upper extremities are flexed and the lower extremities are extended. She required a respirator to assist her breathing. Dr. Morse was unable to obtain an adequate account of the circumstances and events leading up to Karen's admission to the Newton Hospital. Such initial history or etiology is crucial in neurological diagnosis. Relying as he did upon the Newton Memorial records and his own examination, he concluded that prolonged lack of oxygen in the bloodstream, anoxia, was identified with her condition as he saw it upon first observation. When she was later transferred to Saint Clare's Hospital she was still unconscious, still on a respirator and a tracheotomy had been performed. On her arrival Dr. Morse conducted extensive and detailed examinations. An electroencephalogram (EEG) measuring electrical rhythm of the brain was performed and Dr. Morse characterized the result as "abnormal but it showed some activity [***12]  and was consistent with her clinical state." Other significant neurological tests, including a brain scan, an angiogram, and a lumbar puncture were normal in result. Dr. Morse testified that Karen has been in a state of coma, lack of consciousness, since he began treating her. He explained that there are basically two types of coma, sleep-like unresponsiveness and awake unresponsiveness. Karen was originally in a sleep-like unresponsive condition but soon developed "sleep-wake" cycles, apparently a normal improvement for comatose patients occurring within three to four weeks. In the awake cycle she blinks, cries out and does things of that sort but is still totally unaware of anyone or anything around her.

Dr. Morse and other expert physicians who examined her characterized Karen as being in a "chronic persistent vegetative state." Dr. Fred Plum, one of such expert witnesses, defined this as a "subject who remains with the capacity to maintain the vegetative parts of neurological function but who no longer has any cognitive function."

It seemed to be the consensus not only of the treating physicians but also of the several qualified experts who testified in the case, that removal from the respirator would not conform to medical practices, standards and traditions.

The further medical consensus was that Karen in addition to being comatose is in a chronic and persistent "vegetative" state, having no awareness of anything or anyone around her and existing at a primitive reflex level. Although she does have some brain stem function (ineffective for respiration) and has other reactions one normally associates with being alive, such as moving, reacting to light, sound and noxious stimuli, blinking her eyes, and the like, the quality of her feeling impulses is unknown. She grimaces, makes sterotyped cries and sounds and has chewing motions. Her blood pressure is normal.

Karen remains in the intensive care unit at Saint Clare's Hospital, receiving 24-hour care by a team of four nurses characterized, as was the medical attention, as "excellent." She is nourished by feeding by way of a nasal-gastro tube and is routinely examined for infection, which under these circumstances is a serious life threat. The result is that her condition is considered remarkable under the unhappy circumstances involved.

Karen is described as emaciated, having suffered a weight loss of at least 40 pounds, and undergoing a continuing deteriorative process. Her posture is described as fetal-like and grotesque; there is extreme flexion-rigidity of the arms, legs and related muscles and her joints are severely rigid and deformed.

From all of this evidence, and including the whole testimonial record, several basic findings in the physical area are mandated. Severe brain and associated damage, albeit of uncertain etiology, has left Karen in a chronic and persistent vegetative state. No form of treatment which can cure or improve that condition is known or available. As nearly as may be determined, considering the guarded area of remote uncertainties characteristic of most medical science predictions, she can never be restored to cognitive or sapient life. Even with regard to the vegetative level and improvement therein (if such it may be called) the prognosis is extremely poor and the extent unknown if it should in fact occur.

She is debilitated and moribund and although fairly stable at the time of argument before us (no new information having been filed in the meanwhile in expansion of the record), no physician risked the opinion that she could live more than a year and indeed she may die much earlier. Excellent medical and nursing care so far has been able to ward off the constant threat of infection, to which she is peculiarly susceptible because of the respirator, the tracheal tube and other incidents of care in her vulnerable condition. Her life accordingly is sustained by the respirator and tubal feeding, and removal from the respirator would cause her death soon, although the time cannot be stated with more precision.

It is from this factual base that the Court confronts and responds to three basic issues: 



1. Was the trial court correct in denying the specific relief requested by plaintiff, i.e., authorization for termination of the life-supporting apparatus, on the case presented to him? Our determination on that question is in the affirmative.

2. Was the court correct in withholding letters of guardianship from the plaintiff and appointing in his stead a stranger? On that issue our determination is in the negative.

3. Should this Court, in the light of the foregoing conclusions, grant declaratory relief to the plaintiff? On that question our Court's determination is in the affirmative.



This brings us to a consideration of the constitutional and legal issues underlying the foregoing determinations.

CONSTITUTIONAL AND LEGAL ISSUES


III. The Right of Privacy

It is the issue of the constitutional right of privacy that has given us most concern, in the exceptional circumstances of this case. Here a loving parent, qua parent and raising the rights of his incompetent and profoundly damaged daughter, probably irreversibly doomed to no more than a biologically vegetative remnant of life, is before the court. He seeks authorization to abandon specialized technological procedures which can only maintain for a time a body having no potential for resumption or continuance of other than a "vegetative" existence.

We have no doubt, in these unhappy circumstances, that if Karen were herself miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support apparatus, even if it meant the prospect of natural death. . .

We have no hesitancy in deciding, in the instant diametrically opposite case, that no external compelling interest of the State could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life. We perceive no thread of logic distinguishing between such a choice on Karen's part and a similar choice which, under the evidence in this case, could be made by a competent patient terminally ill, riddled by cancer and suffering great pain; such a patient would not be resuscitated or put on a respirator in the example described by Dr. Korein, and a fortiori would not be kept against his will on a respirator.

Although the Constitution does not explicitly mention a right of privacy, Supreme Court decisions have recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under the Constitution. . .

The Court in Griswold found the unwritten constitutional right of privacy to exist in the penumbra of specific guarantees of the Bill of Rights "formed by emanations from those guarantees that help give them life and substance." 381 U.S. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 514. Presumably this right is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman's decision to terminate pregnancy under certain conditions. . .

The claimed interests of the State in this case are essentially the preservation and sanctity of human life and defense of the right of the physician to administer medical treatment according to his best judgment. In this case the doctors say that removing Karen from the respirator will conflict with their professional judgment. The plaintiff answers that Karen's present treatment serves only a maintenance function; that the respirator cannot cure or improve her condition but at best can only prolong her inevitable slow deterioration and death; and that the interests of the patient, as seen by her surrogate, the guardian, must be evaluated by the court as predominant, even in the face of an opinion contra by the present attending physicians. Plaintiff's distinction is significant. The nature of Karen's care and the realistic chances of her recovery are quite unlike those of the patients discussed in many of the cases where treatments were ordered. In many of those cases the medical procedure required (usually a transfusion) constituted a minimal bodily invasion and the chances of recovery and return to functioning life were very good. We think that the State's interest contra weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's rights overcome the State interest. It is for that reason that we believe Karen's choice, if she were competent to make it, would be vindicated by the law. Her prognosis is extremely poor, -- she will never resume cognitive life. And the bodily invasion is very great, -- she requires 24 hour intensive nursing care, antibiotics, the assistance of a respirator, a catheter and feeding tube.

Our affirmation of Karen's independent right of choice, however, would ordinarily be based upon her competency to assert it. The sad truth, however, is that she is grossly incompetent and we cannot discern her supposed choice based on the testimony of her previous conversations with friends, where such testimony is without sufficient probative weight. . . Nevertheless we have concluded that Karen's right of privacy may be asserted on her behalf by her guardian under the peculiar circumstances here present.

If a putative decision by Karen to permit this non-cognitive, vegetative existence to terminate by natural forces is regarded as a valuable incident of her right of privacy, as we believe it to be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice. The only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment, subject to the qualifications hereinafter stated, as to whether she would exercise it in these circumstances. If their conclusion is in the affirmative this decision should be accepted by a society the overwhelming majority of whose members would, we think, in similar circumstances, exercise such a choice in the same way for themselves or for those closest to them. It is for this reason that we determine that Karen's right of privacy may be asserted in her behalf, in this respect, by her guardian and family under the particular circumstances presented by this record.

Regarding Mr. Quinlan's right of privacy, we agree with Judge Muir's conclusion that there is no parental constitutional right that would entitle him to a grant of relief in propria persona. . . Insofar as a parental right of privacy has been recognized, it has been in the context of determining the rearing of infants and, as Judge Muir put it, involved "continuing life styles." . . . Karen Quinlan is a 22-year-old adult. Her right of privacy in respect of the matter before the Court is to be vindicated by Mr. Quinlan as guardian, as hereinabove determined.
 
IV. The Medical Factor

We glean from the record here that physicians distinguish between curing the ill and comforting and easing the dying; that they refuse to treat the curable as if they were dying or ought to die, and that they have sometimes refused to treat the hopeless and dying as if they were curable. In this sense, as we were reminded by the testimony of Drs. Korein and Diamond, many of them have refused to inflict an undesired prolongation of the process of dying on a patient in irreversible condition when it is clear that such "therapy" offers neither human nor humane benefit. We think these attitudes represent a balanced implementation of a profoundly realistic perspective on the meaning of life and death and that they respect the whole Judeo-Christian tradition of regard for human life. No less would they seem consistent with the moral matrix of medicine, "to heal," very much in the sense of the endless mission of the law, "to do justice."

Yet this balance, we feel, is particularly difficult to perceive and apply in the context of the development by advanced technology of sophisticated and artificial life-sustaining devices. For those possibly curable, such devices are of great value, and, as ordinary medical procedures, are essential. Consequently, as pointed out by Dr. Diamond, they are necessary because of the ethic of medical practice. But in light of the situation in the present case (while the record here is somewhat hazy in distinguishing between "ordinary" and "extraordinary" measures), one would have to think that the use of the same respirator or like support could be considered "ordinary" in the context of the possibly curable patient but "extraordinary" in the context of the forced sustaining by cardio-respiratory processes of an irreversibly doomed patient. . .

The evidence in this case convinces us that the focal point of decision should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence to which Karen seems to be doomed.

In summary of the present Point of this opinion, we conclude that the state of the pertinent medical standards and practices which guided the attending physicians in this matter is not such as would justify this Court in deeming itself bound or controlled thereby in responding to the case for declaratory relief established by the parties on the record before us. . .

DECLARATORY RELIEF

We herewith declare the following affirmative relief on behalf of the plaintiff. Upon the concurrence of the guardian and family of Karen, should the responsible attending physicians conclude that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital "Ethics Committee" or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor on the part of any participant, whether guardian, physician, hospital or others. We herewith specifically so hold.



Cruzan v. Harmon (1984)
760 SW 2nd 408

ExCERPTS [footnotes removed]

For the Complete Opinion w/ notes and references Online Click HERE.



OPINION:

. . . At 12:54 a.m., January 11, 1983, the Missouri Highway Patrol dispatched Trooper Dale Penn to the scene of a single car accident in Jasper County, Missouri. Penn arrived six minutes later to find Nancy Beth Cruzan lying face down in ditch, approximately thirty-five feet from her overturned vehicle. The trooper examined Nancy and found her without detectable respiratory or cardiac function.

At 1:09 a.m., Paramedics Robert Williams and Rick Maynard arrived at the accident scene; they immediately initiated efforts to revive Nancy. By 1:12 a.m., cardiac function and spontaneous respiration had recommenced. The ambulance crew transported Nancy to the Freeman Hospital where exploratory surgery revealed a laceration of the liver. A CAT scan showed no significant abnormalities of her brain. The attending physician diagnosed a probable cerebral contusion compounded by significant anoxia (deprivation of oxygen) of unknown duration. The trial judge found that a deprivation of oxygen to the brain approaching six minutes would result in permanent brain damage; the best estimate of the period of Nancy's anoxia was twelve to fourteen minutes.

Nancy remained in a coma for approximately three weeks following the accident. Thereafter, she seemed to improve somewhat and was able to take nutrition orally. Rehabilitative efforts began. In order to assist her recovery and to ease the feeding process, a gastronomy feeding tube was surgically implanted on February 7, 1983, with the consent of her (then) husband.

Over a substantial period of time, valiant efforts to rehabilitate Nancy took place, without success. She now lies in the Mount Vernon State Hospital. n2 She receives the totality of her nutrition and hydration through the gastronomy tube.

The trial court found that (1) her respiration and circulation are not artificially maintained and are within the normal limits of a thirty-year-old female; (2) she is "oblivious to her environment except for reflexive responses to sound and perhaps painful stimuli"; (3) she suffered anoxia of the brain resulting in a "massive enlargement of the ventricles filling with cerebrospinal fluid in the area where the brain has degenerated" and that "cerebral cortical atrophy is irreversible, permanent, progressive and ongoing"; (4) "her highest cognitive brain function is exhibited by her grimacing perhaps in recognition of ordinarily painful stimuli, indicating the experience of pain and apparent response to sound"; (5) she is a spastic quadriplegic; (6) her four extremities are contracted with irreversible muscular and tendon damage to all extremities; (7) "she has no cognitive or reflexive ability to swallow food or water to maintain her daily essential needs" and that "she will never recover her ability to swallow sufficient [sic] to satisfy her needs." In sum, Nancy is diagnosed as in a persistent vegetative state. She is not dead. n3 She is not terminally ill. Medical experts testified that she could live another thirty years.

The trial court found that Nancy expressed, in "somewhat serious conversation" that if sick or injured she would not want to continue her life unless she could live "halfway normally." Based on this conversation, the trial court concluded that "she would not wish to continue with nutrition and hydration."

The court concluded that no state interest outweighed Nancy's "right to liberty" and that to deny Nancy's co-guardians authority to act under these circumstances would deprive Nancy of equal protection of the law. The court ordered state employees to "cause the request of the co-guardians to withdraw nutrition or hydration to be carried out."

As we said, this case presents a single issue for resolution: May a guardian order that food and water be withheld from an incompetent ward who is in a persistent vegetative state but who is otherwise alive . . . and not terminally ill? As the parties carefully pointed out in their thoughtful briefs, this issue is a broad one, invoking consideration of the authority of guardians of incompetent wards, the public policy of Missouri with regard to the termination of life-sustaining treatment and the amorphous mass of constitutional rights generally described as the "right to liberty", "the right to privacy", equal protection and due process.

This is also a case in which euphemisms readily find their way to the fore, perhaps to soften the reality of what is really at stake. But this is not a case in which we are asked to let someone die. Nancy is not dead. Nor is she terminally ill. This is a case in which we are asked to allow the medical profession to make Nancy die by starvation and dehydration. The debate here is thus not between life and death; it is between quality of life and death. We are asked to hold that the cost of maintaining Nancy's present life is too great when weighed against the benefit that life conveys both to Nancy and her loved ones and that she must die. . .

A. The Right to Refuse Treatment

The common law recognizes the right of individual autonomy over decisions relating to one's health and welfare. n11 From this root of autonomy, the common law developed the principle that a battery occurs when a physician performs a medical procedure without valid consent. The doctrine of informed consent arose in recognition of the value society places on a person's autonomy and as the primary vehicle by which a person can protect the integrity of his body. If one can consent to treatment, one can also refuse it. Thus, as a necessary corollary to informed consent, the right to refuse treatment arose. "The patient's ability to control his bodily integrity . . . is significant only when one recognizes that this right also encompasses a right to informed refusal."

A decision as to medical treatment must be informed.


There are three basic prerequisites for informed consent: the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.

 
In the absence of these three elements, neither consent nor refusal can be informed. Thus, it is definitionally impossible for a person to make an informed decision -- either to consent or to refuse -- under hypothetical circumstances; under such circumstances, neither the benefits nor the risks of treatment can be properly weighed or fully appreciated.

B. The Right to Privacy

Quinlan, and cases which follow it, announce that a patient's right to refuse medical treatment also arises from a constitutional right of privacy. Although some courts find that right embedded in their state constitutions, n12 the privacy argument is most often founded on decisions of the United States Supreme Court, primarily Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). Unfortunately, the bare statement that the right of privacy extends to treatment decisions is seldom accompanied by any reasoned analysis as to the scope of that right or its application to the refusal of life-sustaining treatment.

We . . . find no unfettered right of privacy under our constitution that would support the right of a person to refuse medical treatment in every circumstance.

If Nancy possesses such a right, it must be found to derive from the federal constitutional right to privacy announced by the United States Supreme Court. That Court "has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the [United States] Constitution." Roe v. Wade, 410 U.S. at 152. The Supreme Court has not, however, extended the right of privacy to permit a patient or her guardian to direct the withdrawal of food and water. We are left to determine for ourselves whether the penumbral right of privacy encompasses a right to refuse life-sustaining medical treatment.

Quinlan is the first case to apply a right of privacy to decisions regarding the termination of life-sustaining treatment. In deciding the applicability of the right to such determinations, Quinlan first cites Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), for the proposition that the right of privacy exists and, without further analysis states: "Presumably this right is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman's decision to terminate a pregnancy under certain conditions." 355 A.2d at 663, citing Roe v. Wade. The presumption invoked by the New Jersey Supreme Court provides the precedent for the extension of this right of privacy by other courts whose decisions permitting the termination of life sustaining treatment is founded on privacy.

Yet Roe itself counsels against such a broad reading.
The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past.

 
 Roe, 410 U.S. at 154.

The language in Roe is not an aberration. The Supreme Court's most recent privacy decision resisted expansion of the privacy right. In Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), the Supreme Court considered whether the right to privacy extended to the conduct of homosexuals. Noting that the prior right to privacy cases focused on a common theme of procreation and relationships within the bonds of marriage, the court refused to extend the right of privacy beyond those bounds, arguing that such an extension amounted to the discovery of a new right.

Based on our analysis of the right to privacy decisions of the Supreme Court, we carry grave doubts as to the applicability of privacy rights to decisions to terminate the provision of food and water to an incompetent patient. n14 As will be seen, however, even if we recognize such a broadly sweeping right of privacy, a decision by Nancy's co-guardians to withdraw food and water under these circumstances cannot be sustained. . .

It is tempting to equate the state's interest in the preservation of life with some measure of quality of life. As the discussion which follows shows, some courts find quality of life a convenient focus when justifying the termination of treatment. But the state's interest is not in quality of life. The broad policy statements of the legislature make no such distinction; nor shall we. Were quality of life at issue, persons with all manner of handicaps might find the state seeking to terminate their lives. Instead, the state's interest is in life; that interest is unqualified.

D. Balancing the Patient's Rights and the State's Interest

1.

In casting the balance between the patient's common law right to refuse treatment/constitutional right to privacy and the state's interest in life, we acknowledge that the great majority of courts allow the termination of life-sustaining treatment. In doing so, these courts invariably find that the patient's right to refuse treatment outweighs the state's interest in preserving life. In some cases, that result is the product of a hopeless medical prognosis; in others, the court allows concerns with quality of life to discount the state's interest in life. Quinlan, of course, is the source in each instance. . .

Prior to Quinlan, the common law preferred to err on the side of life. Choices for incompetents were made to preserve life, not hasten death. Quinlan changed the calculus. Moving from the common law's prejudice in favor of life, Quinlin subtly recast the state's interest in life as an interest in the quality of life (cognitive and sapient), struck a balance between quality of life and Karen Quinlan's right to privacy and permitted the termination of a life sustaining procedure. . .

As we previously stated, however, the state's interest is not in quality of life. The state's interest is an unqualified interest in life. . .

Nancy's counsel argues that her treatment is invasive. The invasion took place when the gastronomy tube was inserted with consent at a time when hope remained for recovery. Presently, the tube merely provides a conduit for the introduction of food and water. The continuation of feeding through the tube is not heroically invasive.

The state's relevant interest is in life, both its preservation and its sanctity. Nancy is not dead. Her life expectancy is thirty years.

Nancy's care requirements, while total, are not burdensome to Nancy. The evidence at trial showed that the care provided did not cause Nancy pain. Nor is that care particularly burdensome for her, given that she does not respond to it.

Finally, there is no evidence that Nancy is terminally ill. The quality of her life is severely diminished to be sure. Yet if food and water are supplied, she will not die.

Given the fact that Nancy is alive and that the burdens of her treatment are not excessive for her, we do not believe her right to refuse treatment, whether that right proceeds from a constitutional right of privacy or a common law right to refuse treatment, outweighs the immense, clear fact of life in which the state maintains a vital interest.


 

LINKS:

 

ETHICS HANDOUTS:

 

GUIDES TO READING AND WRITING PHILOSOPHY

 

READING
        WHAT IS MORALITY?
  • "Baby Theresa" (Florida Supreme Court 1992)(Class Handout)
  • "Baby Jane Doe" (New York State Supreme Court, 1983) (Class Handout)
  • "The Tracy Latimer Case: Saskatchewan, Canada) (Class Handout
    for a discussion of ways to define morality,
    see Bernard Gert's entry on "The Definition of Morality"
    in the Stanford Encyclopedia of Philosophy.

    WHY BE MORAL?

  • Joel Feinberg, "Psychological Egoism"
  • James Rachels, "Ethical Egoism"
    in REASON AND RESPONSIBILITY, pp. 476-495.
  • Russ Shafer Landau, "Ethical Subjectivism"
    the complete text of Shafer-Landau's article can also be
    found ONLINE on Shafer-Landau's Home Page.
  • Mary Midgley, "Trying Out One's New Sword"
    in REASON AND RESPONSIBILITY, pp. 476-495.
    For a brief overview of psychological egoism and ethical egoism
    see Robert Shaver's entries on "Psychological Egoism" and "Ethical Egoism"
    in the Stanford Encyclopedia of Philosophy and for an
    Overview of moral relativism see Chris Gowans's entry on "Moral Relativism"
    also in the Stanford Encyclopedia of Philosophy

    UTILITARIANISM: FOR AND AGAINST

  • "John in the Amazon" Class Handout and ONLINE
  • Michael Levin , "The Case for Torture" Class Handout and ONLINE
  • "The Case of the Speluncaean Explorers" Class Handout and ONLINE
  • John Stuart Mill (1806-1873) , Utilitarianism, Chapters One and Two
    in REASON AND RESPONSIBILITY, pp. 594-607
    Full text of Mill's Utilitarianism Online.
    For an Overview of Utilitarianism see Walter Sinot-Armstrong's entry
    on "Consequentialism" in the Stanford Encyclopedia of Philosophy and for an
    Overview of John Stuart Mill's special brand of utilitarianism,
    see Fred Wilson's entry on Mill's "Moral Philosophy"
    also in the Stanford Encyclopedia of Philosophy.

    KANTIAN ETHICS

  • Immanuel Kant (1724-1804) , The Groundwork of the Metaphysic of Morals in REASON AND RESPONSIBILITY, pp. 579-593
    Full text of Kant's Groundwork of the Metaphysic of Morals Online. And for an
    Overview of Kant's Theory of Morality, see Richard Johnson's entry
    on "Kant's Moral Philosophy" in the Stanford Encyclopedia of Philosophy.

    DOES MORALITY DEPEND ON RELIGION?

  • Philip L. Quinn , "God and Morality"
    in REASON AND RESPONSIBILITY, pp. 564-579
    For an Overview and Critique of Quinn's divine command theory of morality,
    see the entry on "The Dviine Command Theory of Morality"
    in the Internet Encyclopedia of Philosophy.

    ARISTOTELIAN ETHICS

  • Aristotle (384-322 BCE) , Nichomachean Ethics
    in REASON AND RESPONSIBILITY, pp. 525-541
    Full text of Aristotle's Nichomachean Ethics Online.
    and for an Overview of virtue theories, see Rosalind Hursthouse's entry
    on "Virtue Ethics" in the Stanford Encyclopedia of Philosophy.

    THE IDEA OF A SOCIAL CONTRACT

  • Thomas Hobbes(1588-1679) , The Leviathan (selections)
    in REASON AND RESPONSIBILITY, pp. 541-554
    Full text of Hobbes' Leviathan Online and for an
    Overview of Hobbes' view, see Sharon Lloyd's entry
    on "Hobbes's Moral and Political Philosophy"
    in the Stanford Encyclopedia of Philosophy.
  • "A Prisoner's Dilemma" (Class Handout)
    see, too, the Interactive Version of The Prisoner's Dilemma
    Online on the BBC's Web Site. [Shockwave Required]
  • John Rawls (1921-2003) , A Theory of Justice (selections)
    in REASON AND RESPONSIBILITY, pp. 554-564
    see also John Rawls's article "Justice as Fariness" [Brandeis Access Only]
    which lays out an early version of the theory and for an
    Overview of more recent social contract theories, see Fred D'Agostino's entry
    on "Contemporary Approaches to Social Contract Theory"
    in the Stanford Encyclopedia of Philosophy.

    FEMINISM AND ETHICS OF CARE

  • Annette Baier , "The Ethics of Care" (Class Handout)
    for an Overview of gender issues and ethics
    see Rosemary Tong's entry on "Feminist Ethics"
    in the Stanford Encyclopedia of Philosophy.

    APPLIED AND PRACTICAL ETHICS

    (a) World Hunger and Famine Relief

  • Peter Singer, "Famine, Affluence and Morality"
    in REASON AND RESPONSIBILITY, pp. 631-639
    Full text of Singer's "Famine, Affluence and Morality" [Brandeis Access Only]
    Originally published in The Philosophical Review, Vol. 76, No. 4. (Oct., 1967), pp. 460-475.
    See also a further discussion: "The Singer Solution to World Poverty" is available Online
    Originally published in The New York Times Sunday Magazine (September 5, 1999)..
  • Onora O'Neill , "Kantian Approaches to Some Famine Problems"
    in REASON AND RESPONSIBILITY, pp. 639-645
    see, too, the STUDY GUIDE online for THE FINAL EXAM
    for the Intro class taught at Harvard University in the Summer.

    (b) Abortion For and Against

  • Judith Thomson, " In Defense of Abortion,"
    in REASON AND RESPONSIBILITY, pp. 667-677 and also
    in Philosophy and Public Affairs, Vol. 1, No. 1. (Autumn, 1971)
    ONLINE: CLICK HERE
    [Brandeis Access Only]
  • Don Marquis , "The Argument That Abortion is Wrong"
    in REASON AND RESPONSIBILITY, pp. 677-687
    Full text of Marquis's article"Why Abortion Is Immoral" [Brandeis Access Only] ,
    laying out an early version of Marquis's argument

    (c) Do Animals Have Rights?

  • Peter Singer, "All Animals Are Equal"
    in REASON AND RESPONSIBILITY, pp. 654-666

 

 


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