Dworkin, Ronald - Assisted Suicide: The Philosophers' Brief

12/18/2009

The New York Review of Books, Vol 44, No 5 March 27, 1997

This is a brief filed by 6 philosophers (Dworkin, Nagel, Nozick, Rawls, Scanlon, Thomson) with the US Supreme Court in support of assisted suicide, as there were two cases before the court relating to it. Dworkin wrote an introduction and in Slate Magazine there followed an exchange of letters between Michael McConnell and Dworkin, McConnell criticizing the brief's reliance on 'judicial rhetoric' and defending a reading of the due-process clause of the 14th amendment that rights are granted by the nation's 'tradition and experience' of granting them. Since the only one state has very recently allowed assisted suicide, there is no tradition and experience of granting this right therefore it is improper for the Court to grant it. Dworkin's reply is that this is a particular interpretation of the 14th amendment and isn't the only one used by the Court and certainly isn't the only defensible one.

The brief filed by the philosophers is introduced and summarized by author. Author takes the time to lay out the context of the debate: that there are two main 'slippery slopes' that the Court is worried about (or at least was worried about on oral argument): the theoretical and the practical.

The Theoretical slippery-slope says that there is no principled place to 'draw the line' about which assisted suicides are permissible and which are not. The Philosophers' response to this is to suggests a difference between firm, considered, deep convictions about life's value and impulsive decisions perhaps made out of emotional depression where the state has reason to believe that the person would be grateful later if they were prevented from dying.

The Practical slippery-slope says that if assisted-suicide were legal, states would no doubt try to regulate it; but there would be a mix of successes and failures, and the vulnerable patients, the poor or the less-cared-for, would die as an outcome of poor systematic protections. Author answers this first by suggesting that the wealthy already enjoy an informal version of this right. Author secondly suggests that this slippery-slope argument applies across the board, even with pain-management already. Building on this, if assisted suicide was legal, it would be likely legislated that all palliative measures would be legislated to be employed prior to the suicide, thereby possibly raising the level of care for the poor and needy.

Author proposes that there are three methods that the Court could use to rule against the lower courts (in favor of the right of assisted suicide) in this decision. The first would be to deny a liberty interest in assisted suicide. The second would be to grant a liberty interest in assisted suicide but claim that states can override this interest in toto. This seems to be 'a conundrum'. The final method would be postponement, which author favors as the least damaging way to reject lower courts' decisions.


The Philosophers' brief first claims that in a free society individuals have a right to determine, for themselves, their values about 'the most intimate and personal choices... central to a person's dignity and autonomy' (Casey). And offer deeply held beliefs about one's own death as falling under this category. Of particular interest is the discussion about the potential distinction between "letting die" and "killing", and a possible "common-sense" distinction between acts and omissions. The brief claims this is an error. Anything that causes death contrary to a patient's wishes, whether it is an act or an omission, is wrong for the same reason. The important interest here is the patient's wishes, and from a patient's perspective there is no difference what the doctor does if it is in line with her own wishes. From the doctor's perspective, there seems to be no difference either between less, more (or no) care if the death (or life) of the patient is what the doctor is aiming at. The final argument of the brief is that state interests are not high enough to categorically prohibit assisted suicide. The body of this argument involves responding to the Solicitor-General's arguments against assisted suicide.