Later this year the Supreme Court will decide on two cases, one from Washington State and one from New York, which pose the question of whether dying patients have the right to have doctors supply them with lethal drugs-that is, whether people have the right to assisted suicide.
Earlier this year an amicus curiae brief (submission to the Court from parties not involved in the case) was filed with the Supreme Court, subsequent to the oral argument on Jan. 8, by six of America's most renown moral philosophers asking the Court to vote in favor of the right to assisted suicide.
These philosophers were Ronald Dworkin and Thomas Nagel, both from New York University, John Rawls, Thomas Scanlon and Robert Nozick, all from Harvard and Judith Jarvis Thomson, from Massachusetts Institute of Technology.
This is the first time in the history of this country that moral philosophers have come together like this and filed a brief. As Dworkin says in his introduction to the text of the brief, published in the March 27 issue of The New York Review of Books, he is "unaware of any other occasion on which a group has intervened in Supreme Court litigation solely as general moral philosophers," as opposed to being "members of organizations or as representing an applied speciality like bioethics."
The first thing that should be said about the action of these philosophers is that, whatever the argument that they make in their brief, the action itself is an immensely important and commendable one. It sets a new precedent for the involvement of professional moral philosophers in making important decisions about morality in this country. I heartily applaud all six of them for their contribution to this debate.
I am not so happy, however, with the brief itself. Here I shall simply comment on what I consider to be the most important argument in the brief. The argument is that since the Supreme Court has already supported the right of a person to have a doctor withdraw life-sustaining treatment (Cruzan v. Missouri, 1990), it follows that it should support the right of a person to have a doctor administer lethal drugs.
Their argument is that there is no morally pertinent difference between a doctor's withdrawing treatment thatkeeps a patient alive, and a doctor's administering drugs which will kill the patient. As they say in their brief, "Whether a doctor turns off a respirator in accordance with the patient's request or prescribes pills that a patient may take when he is ready to kill himself, the doctor acts with the same intention: To help the patient die."
Here the philosophers are knowingly rejecting a traditional distinction made between these two kinds of action. Withdrawing treatment is referred to as "passive euthanasia," and administering lethal drugs is referred to as "active euthanasia." The argument of the brief is that there is no morally pertinent difference between the two-between killing and letting die. They claim that the justices' argument for such a distinction is "based on a misunderstanding of the pertinent moral principles." The several justices, however, were perfectly correct to argue in January that there is "a 'common-sense' distinction" between these two actions. If, for example, I refuse to contribute to a fund for saving the lives of starving people in some other part of the world, and as a result they die, this is not morally equivalent to my traveling there and killing them. Both acts may be wrong, but they are not morally equivalent.
Hence, there is a morally pertinent difference between the two actions. The justices do not simply "misunderstand" moral principles, but disagree with Dworkin et al. about the truth of the distinction. This is the part of the brief that I reject.
Given the coherence of this distinction, should active euthanasia be made legal? The Australian national parliament recently annulled the legislation which, for a short while, permitted active euthanasia. As Dworkin points out, only one country in the world, The Netherlands, "has allowed assisted suicide, in practice, for several years".
But even in The Netherlands, active euthanasia is not "legal." The situation is that, in extreme cases which fulfill strict criteria (patients must be in excruciating pain, patients must be fully rational, etc.), doctors will not be prosecuted for putting patients to sleep. Thus, there is no country in the world in which active euthanasia is legal.
If the Supreme Court does legalize active euthanasia, the United States will be the only country in the world that has such a law. I predict that they will not legalize it.
James Mahon is a second-year graduate student in philosophy.
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