by Thaddeus Mason Pope, JD, PhD

In December, I defended the term “death panel” on this blog. Specifically, I demonstrated that we already have, and for over 50 years have had, quite a number of tribunals that act as death panels. For example, at least daily, UNOS denies potentially life-saving organ transplant requests. While the term “death panel” has a pejorative connotation, the essential concept and function is necessary. Particularly in situations of strict scarcity, life and death decisions must be made. They are made. And they will continue to be made.

So, the relevant question is not whether to “have” death panels. Instead, the relevant question is whether we want to openly “acknowledge” our death panels. I am reminded of a famous scene from the 1992 film, A Few Good Men. You will recall that the story revolves around the court martial of two Marines charged with the murder of a fellow Marine. The defendants had administered a “Code Red,” an unofficial punishment, against a fellow member of their unit who was not sufficiently squared away to meet the Corps’ standards.

In the film’s most famous scene, Lt. Kaffee (Tom Cruise) cross examines Col. Jessup (Jack Nicholson) about the Code Red. Lt. Kaffee says, “I want the truth!” Jessup responds:

You can’t handle the truth! Son, we live in a world that has walls, and those walls have to be guarded by men with guns. . . . I have a greater responsibility than you can possibly fathom.

You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know, that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives!

You don’t want the truth, because deep down in places you don’t talk about at parties, you want me on that wall.

Col. Jessup’s point is that Code Reds are an invaluable part of close infantry training. But since they are “grotesque,” they are officially discouraged (even prohibited).

Is this the path that we should take with death panels? Since we find them grotesque, should we deny both their necessity and their existence? The argument has been compellingly made. In their 1978 book, Tragic Choices, Guido Calabresi and Phillip Bobbitt argued that the difficult but necessary life-and-death choices entailed in rationing can only be made by hiding them from public scrutiny.

In contrast, others call for open acknowledgement of death panels. For example, in a recent interview with Rolling Stones, Bill Gates rightly observed that we must deny even effective and life-saving medical technology to some people. “The idea that there aren’t trade-offs is an outrageous thing. Most countries know that there are trade-offs, but here, we manage to have the notion that there aren’t any. So that’s unfortunate, to not have people think, ‘Hey, there are finite resources here.’”

Gates is right. Calabresi and Bobbitt are wrong. The disadvantages of a “hide and deny” approach are substantial. First, it makes it more difficult to have our death panels operate in an open and transparent manner. This increases the risk of bias and corruption. Second, it means that they may not operate according to sufficiently deliberated principles. Third, a hide and deny approach means that death panels may not operate in a consistent and uniform manner from region to region. In short, hiding and denying death panels forecloses and delays much needed public discourse over how we want out death panels to operate.

Death panels, while tragic, save lives. And their existence, while grotesque and incomprehensible to many, saves lives. We don’t want the truth, because deep down in places we don’t talk about at parties, we want death panels.