The following editorial can be found in the September issue of The American Journal of Bioethics
Shavelson et al. raise the familiar question of parity or fairness in the assisted dying debate: if we legally permit the practice for one person, should we not permit everyone similarly situated to access it? To do otherwise seems unfair. It touches a deep moral nerve, making parity arguments potent means of making one’s case—likely explaining their popularity. But they are probably no less popular than what I will call instability arguments (sometimes called conceptual slippery slope arguments) put forth by critics of assisted dying which also focus on equality and discrimination.
Parity arguments assume that a law that permits some form of assisted dying is a good thing, but attack the law’s eligibility boundary by taking the perspective of those who presumably have the requisite similarities with those who qualify and desire assisted dying but are excluded by that boundary. The law is therefore said to be morally suspect and discriminatory. Instability arguments also attack the boundary, but they take up the perspective of those who qualify for assisted dying but do not welcome the privilege. These persons do not want to be singled out by society as having conditions which make their lives not worth living, nor welcome the loss of protection that the prohibition of assisted dying once provided them.
Although these arguments come from opposite directions, they both reflect the profound importance of equality in the assisted dying debate. Without a general understanding of why equality concerns are so central to the debate, it will be difficult to evaluate specific parity arguments such as Shavelson’s. In this brief essay, I sketch out (without filling in the details) the landscape of the assisted dying debate and the centrality of equality arguments in it.
Shavelson et al.’s proposal is intended to be very modest. They argue that a person who can self-administer a life-terminating intervention (i.e., can push a syringe to completion) and a person who can initiate but unable to finish the push should be treated the same. They say they are not questioning the validity of the line between “full” assistance and no assistance. They argue that the dichotomy between assisted death and euthanasia ignores this “middle” option of “assisted self-administration”.
Let’s suppose we grant the authors’ wish. (I put aside the myriad practical and legal questions that their proposal raises.) But as soon as we grant their wish, obvious questions arise. For instance, what about those who cannot start the push? The authors could reply they are not arguing for “full” assistance, such as an injection by a doctor, since that is clearly prohibited by the California law. But it would seem that the moral case of discrimination has not changed. It seems arbitrary, in their comparison of cases, to leave out the Imani who can neither swallow nor initiate the push of the syringe. Why not have the same moral outrage on behalf of this Imani, one might wonder. To extend the authors’ own reasoning, imagine that Imani can start but not finish the push as of yesterday, deserving of the authors’ concern, but today she is no longer able even to do that. One could rehearse many of the authors’ statements on behalf of Imani who cannot finish the push, and apply them to the Imani who cannot initiate a push.
Furthermore, the authors note that the problem of those who cannot finish the push has been well known at least since 1997. The California law was passed nearly 20 years later. Why do proponents of assisted dying continue to settle for the same legal language from the 1990s that, according to the authors, leads to morally problematic, discriminatory practices? The right to control the circumstances of one’s own death is no small issue. It seems morally callous to continue to support such arbitrary forms of discrimination regarding such a profound decision.
There are two possible responses to this. The first option is to argue that equality sometimes has to take a back seat to other values. This would be a principled argument, if in fact some principle can justify the resulting inequality. Perhaps Shavelson et al. would accept that they are treating unequally those Imanis who cannot swallow or initiate a push and plan to mount a principled justification for it. But we see no evidence of that here.
The second option is to provide a strategic, practical explanation for ignoring the Imani who cannot start the push. It seems strategically foolish to go for a currently unattainable aim when one could achieve half of one’s goals; it is better to settle for less now, and to bide one’s time to achieve the rest. This is a perfectly rational and prudent approach—but only if the parity argument is merely a strategic, rather than a principled, move. And such a response risks taking the present discussion outside the realm of reasoned, good faith discussion among interlocutors of various perspectives on assisted dying.
Some readers may object that I am portraying the boundaries of eligibility as more vulnerable to attack than they are. Surely, one might think, there are good principled reasons to set a specific, stable boundary. But both empirical and conceptual considerations indicate otherwise.
Although all assisted dying laws in theory require that the requestor be competent and informed (putting aside non-legislative, no-prosecution carveouts for special populations), the range of eligibility boundaries is wide. They include: terminal illness (with differing definitions in the US states, New Zealand, Australian states; it is not a restriction in other jurisdictions), medically based irremediable suffering with assisted dying as a last resort (as in Belgium and the Netherlands), medically based irremediable suffering with assisted dying not as a last resort (as in Canada), induced death (injection by someone else than the recipient, allowed in most assisted dying jurisdictions) versus assisted death (self-administered act, as in US states, Switzerland). It is notable that the distinction Shavelson et al. focus on—self-administration, assisted or otherwise, versus induced death—is rejected by most jurisdictions that allow assisted dying.
This is not the place to examine each of the above boundaries. But it is obvious that as a matter of empirical fact, even among countries that share so many common features—wealthy, white, European (and European descent), liberal democracies—a common boundary seems elusive. Further, conceptually there is a fairly intuitive reason why there are no stable eligibility boundaries across jurisdictions, and why the movement within each tends toward expansion of categories. Regardless of one’s view about assisted dying, most would agree that if something is so morally weighty so as to outweigh the longstanding prohibition against intentional taking (even with the person’s consent) of human life—a prohibition still respected in 95% of countries on the planet—then that thing must be of no ordinary importance and weight. Indeed, its moral weight will likely outweigh most reasons given to hem it in. For instance, take intolerable suffering due to medical conditions, which is a justifying condition in some countries. If it is the badness of intolerable suffering that justifies assisted dying upon request, then that badness surely outweighs whatever countervailing moral weight borne by the medical vs non-medical distinction.
There is of course one common denominator among all of the various regimes that regulate assisted dying, viz., a right that is based solely on the value of self-determination (“autonomy” in the modern bioethicists’ parlance). The conceptual pressure created by parity arguments will tend to push laws toward this single criterion. The German Federal Constitutional Court expressed just this view and it is explicit about how it sees typical boundaries that restrict assisted dying: “the right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses,” the court says, “nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence”.
Such a system seems to achieve a truly egalitarian framework. Any competent adult, presumably, would be able to access assisted dying, without having to justify their request based on illness, suffering, terminal condition, etc. Parity arguments seem to have run out of boundaries to complain about.
But that conclusion would be too hasty. If “competence” is a functional concept, requiring sufficient decisional abilities, what about minors who seem capable of making decisions? Both Belgium and the Netherlands already have expanded access to their assisted dying law to minors. But even an expansion to include minors would not exhaust concerns about discrimination. Without resorting to some fanciful hypothetical construct to generate a slippery slope, we can consider a widely discussed challenge to the very idea of functional definition of capacity, pushed by an influential UN committee. The United Nations Committee on Rights of Persons with Disabilities (CRPD) has argued that a functional abilities approach to determining capacity is discriminatory, and that everyone regardless of one’s disability or functional abilities has legal capacity. The Committee has therefore called for the abolition of surrogate decision-making laws.
We have now arrived at our final destination. Existing constructs (human rights constructs, no less) can readily be enlisted to argue that since even functional abilities are not needed for possession of legal capacity, anyone can qualify for assisted dying. Regardless of one’s age, gender, health status or disability, functional decisional abilities, etc., every person would have access to assisted dying in this egalitarian, if dystopian, scenario.
Is my argument alarmist? It is true that I offer the above as a reductio ad absurdum. But in the assisted dying debate, one person’s reductio is another person’s anti-discrimination argument. And given the widespread strategic use of parity arguments, one can be forgiven for some degree of skepticism regarding those who dismiss arguments like mine as unrealistic or morally unthinkable.
What are the alternatives? I’ve already mentioned the alternative of giving up the quest for equality when it comes to assisted dying laws. This may be defensible, if a convincing principled argument can be given to defend one of the boundaries. It would amount to saying one of the following, depending on one’s point of view. For assisted dying proponents, it would amount to saying that on this very important issue of life or death choice, some human beings deserve that choice but other human beings do not. For assisted dying skeptics, it would amount to saying that the law should deem assisted dying permissible for some people whose lives are below a certain threshold of value, but other lives should be protected because they are too valuable. It seems unlikely that a decisive principled argument would emerge; the best we might hope for is a fair, deliberative democratic process to justify the inequality. This will, however, make the process of arriving at a boundary susceptible to what usually maintains unjustified inequalities in societies, namely, inequality of power—i.e., those with more socioeconomic, cultural, and political influence maintaining their preferred boundaries.
There is of course another way of achieving true universal equality among all persons regarding assisted dying. And that is to prohibit all intentional termination of human life, even upon request, by a private citizen. What this conclusion suggests is that it is not some absolute inviolability of human life that need ground arguments against assisted dying. It is about showing equal respect for all human life. An absolute prohibition is the only truly principled basis for treating every human being’s life equally.
So there are three choices: assisted dying with contested boundaries stabilized by a democratic process, which is in turn susceptible to influence of inequalities of power, privilege, and economic resources; assisted dying with no boundaries, an egalitarian dystopia; and finally, assisted dying for none, based on a human rights achievement thousands of years in the making—a deep commitment to the equality of all human lives.
Scott Y. H. Kim, MD, PhD is a Senior Investigator in the Department of Bioethics at the NIH.