 On behalf of the McLean Center for Clinical and Medical Ethics, I'm delighted to welcome you to today's lecture in our series on End of Life Care. Next Wednesday, February 25, in this room, I apologize also for the shifts in rooms. But in this room, Dr. Mark Shoshuski, who's the head of ethics at Loyola Medical School, will give a talk entitled, you have to bear with me, it's a long title. I will never let that be okay again. Medical student reflections on caring for dying patients. As I say, that talk will be in this room. It is now my pleasure to introduce our speaker today, Professor Dan Rudney. Professor Rudney is a professor of philosophy in the university and in the college, associate faculty in the Divinity School, and faculty at the McLean Center also. Dan writes about and teaches about political philosophy, bioethics, the philosophy of religion. He authored the book called Mark's Attempt to Leave Philosophy, published by Harvard. He's also published many articles on bioethics. I'll just mention a couple of titles. Are alcoholics less deserving of liver transplant? I won't tell you the answers to just the titles. Pregnancy is not a disease, which appeared last year. Losing dignity, a review of human dignity and bioethics, based on the President's Council report on dignity. Professor Rudney has served on the program committee for the human rights program at the university, on the board of the Frankie Institute for the Humanities. He also is an associate editor for the journal Theoretical Medicine and Bioethics, and a member of the editorial board of the journal Ethics. Today, Dan will speak to us on Democratic legitimacy and end of life decisions. Please join me in welcoming Dan Rudney. The message, philosophers don't do this sort of thing. We speak to small groups, we don't do slides, I brought in a few, but they're terrible, but that's just sort of a concession because I understand medical audiences. I was once told when I gave a talk at a hospital that you had to have slides, that there had to be some visual toy there for people to look at. So I put up a few. I will no doubt lose track of where the slides should be. So, and then I'll remember and flip through them. Anyway, the argument that I'm going to make today rests on a basic premise. That is that in a diverse liberal democracy, it's not only important how the state deploys its course of power but why it does so. It's important to determine what are the proper reasons that could provide justification for the state's use of its coercive power. The state deploys its power, for instance, in making the physician assisted suicide punishable by a jail term. Then I must do so for the right kind of reason. I'll argue that if we accept this basic premise and if we also accept a particular account that specifies the content of the right kind of reasons, it will then be difficult. Although I want to stress not impossible to justify a criminal prohibition of physician assisted suicide. So my argument is going to be an argument in political morality. That is, it's an argument about the moral constraints on state action. It's not going to be an argument about personal morality. So I'm going to be prescending from the substantive question of whether physician assisted suicide is morally permissible. As with some other questions, one might believe that a particular kind of action is immoral and you might criticize people who do it, criticize them severely. And yet you might also believe that it would be morally wrong for the state to forbid such an action. Many people, for instance, feel this way about abortion. Many people are personally opposed to abortion. And yet believe that it should be a legal option for women. In a similar way, the question of one's personal view of assisted suicide and one's view about whether assisted suicide should be legal could diverge. Now, every so often I'm going to invoke American constitutional jurisprudence. I do this to show that the ideas that I'm presenting have a foundation in our own cultural history and commitments. However, my argument is an argument about political morality, not about constitutional law. It's an argument about the conditions for the exercise of state power to be legitimate. The argument I give is deeply derivative from an argument presented as an amicus curia brief to the Supreme Court in 1996. The authors of that brief were the philosophers Ronald Dworkin, John Rawls, Robert Nozick, Thomas Nagel, Judith Jarvis-Thompson, and Tim Scanlon. That's mostly liberals, but not only. I'll be supplementing what is in that brief, but the basic thought is already there. That doesn't trouble me. First, obviously, truth comes before originality. But also part of the point of the philosopher's brief, as it's often called, is that the argument itself has been long founded in our own political history. Now, when thinking about bioethics policy, it's important to separate. By the way, if this becomes just terminally annoying, please let me know, I think, to be going up and down. In thinking about bioethics policy, it's important to separate three questions. There's the question about whether a proposed action is morally permissible or impermissible. There's the question of whether a proposed action should be forbidden by law, and there's the question if the proposed action is not legally forbidden and shouldn't be legally forbidden, whether it's at odds with the best account of the professional standards of the group that would perform the action. My focus is on the second question. Of course, if I'm right about the second question, that assisted suicide probably ought not to be prohibited by law, we then have to tackle a third question, namely whether those who engage in assisting someone in suicide are doing so in conflict with the best account to the professional standards that apply to them, for instance, that apply to physicians and other healthcare workers. But that is, as I say, a separate question that's to be reached only if you agree that assisted suicide should be legal. So I want to begin with a place where constitutional law and political morality might be thought to converge. The public display of religious symbols, for instance, of a creche on the lawn in front of City Hall. There's more than one reason why such a display might be a morally impermissible transgression of the line between state and religion. First, the meaning of a creche on city property is that Christianity is the favored religion of the city, and that other religions have second-class status. That's the view of Justice Sandra Day O'Connor in her concurrent opinion in the 1984 case of Lynch versus Donnelly. Their Justice O'Connor writes that a creche sends a message to non-adherence that they are outsiders, not full members of the political community. O'Connor's point is not about the intentions of the older men and older women who may have voted to display the creche. It's about the objective meaning of such a symbol in our culture at this time. However, if we knew the intentions of the older men and older women, we might find those intentions themselves to be objectionable. If so, their intentions were to advance the hegemony of Christianity to express the view that Christianity is the one true religion. So there could be two reasons to object to the creche, one having to do with the meaning of a creche on government property, one having to do with the intentions of the legislators. In other cases, however, these two types of reasons could diverge in terms of their constitutional status. Thus, let's imagine that Roe versus Wade is overturned and that a state enacts a statute that makes abortion a felony punishable by a jail term. The statute is enacted by a majority vote in both houses of the state legislature. The legislators then talk to the media and they're surprisingly candid. It turns out that every legislator who voted for the anti-abortion criminal statute did so because he or she belongs to a particular religious sect. Let's imagine it's the same for all the legislators that forbids abortion as contrary to God's command. Note that the purpose of the statute is not to proselytize on behalf of this religious sect. Nor does the prohibition have the palpable symbolic meaning of the creche on the city hall lawn. It's not obvious that the statute would violate the First Amendment of the US Constitution, we'll leave that to the constitutional lawyers. I do hope that it seems intuitively clear that something is amiss here, that a statute enacted solely on the basis of one group's religious beliefs comes perilously close to what happens in a theocracy. I hope that it seems clear that as a matter of a plausible political morality for a diverse democratic society, the reasons that the legislators have for their votes are not the right sorts of reasons. The underlying thought is that when we exercise our collective power over someone, we need to give that person a justification for our exercise of power. If legislator Jones votes to prohibit citizen Smith's religious practices, Jones must give Smith a reason, and it must be the right kind of reason. So here's the wrong kind of reason. Your religion, Mr. Smith, is false and hated by the one true God. Now, that could be the right kind of reason in other, or at least a permissible reason, even if in its own way despicable in other contexts, for instance, might explain why Jones refuses to invite Smith to dinner. It's the wrong kind of reason, at least in a diverse democracy, to justify state criminalization of Mr. Smith's religious practices. Here could be the right kind of reason. Mr. Smith, your religious practices involve the use of highly flammable substances that pose a significant risk to neighboring residential buildings. Public safety considerations justify or prohibiting your religious practices in densely populated areas. Now, we all know that such a justification might be really a facade for religious hatred, and it might be defeasible if Smith provides adequate fire protection. Still, it is the right kind of reason. It's not about the correctness or incorrectness of Mr. Smith's belief, but about a genuine public welfare consideration that is independent of the correctness or incorrectness of Mr. Smith's beliefs. So I want to be clear about what's unusual when it comes to the justification of the stage coercive power. Normally, we seek after truth, or at least after sufficient reasonableness. We look for good reasons without considering to whom those reasons are to be given. We try to determine what is in fact true. However, when our actions will affect others' lives in a non-trivial manner, we may feel that we have to do something else, or at least something extra. We have to justify our actions to those who are affected by our actions, and this is especially the case when the other person might be coerced, and even more so when the source of the coercion is the collective power of a democratic polity. Now, we invoke reasons in different ways. Sometimes we invoke a reason to explain someone's conduct. Willie Sutton said that he robbed banks. Why did Willie Sutton say he robbed banks? That's where the money is. Now, we can all take that to be an explanatory reason. That helps us to understand what it is that Willie was doing and why he did it. I take it most of us will not take that to be a justifying reason, a reason that provides a legitimate and powerful justification for what Willie did. Now, some reasons can't count as justifying reasons for a person who doesn't have a certain belief. If you say that Christianity is the revealed religion, as shown by the sacred text in the New Testament, and that you are suppressing my religious practices because the revealed religion condemns those practices, I can take what you say as an explanatory reason. It enables me to understand why you're doing what you're doing. I can't, however, and this is a logical point. It's not a psychological point. I can't logically take this reason to be a justifying reason, a reason that I could take as a candidate, maybe not even a good candidate, but as a candidate to justify what you're doing, unless, like you, I believe that Christianity is the revealed religion. So for me to think about this as a justifying reason, I have to already accept a fundamental premise that you have, and which, as it happens, I don't have. So why should justifying reasons, at least when it comes to the exercise of our collective coercive power, have the special feature that the other person must be able to see the reason as a candidate justifying reason without having to, say, change your religion? The thought is that it's a form of disrespect to coerce a person on the basis of a reason that she cannot see as a justifying reason. People should be able to affirm the laws that coerce them, or at least be able to affirm the laws that coerce them with regard to certain fundamental liberties. If we're proposed to use our collective power to infringe a fundamental liberty, it seems a form of serious disrespect to impose our power, especially where the affected person is a member of the relevant we, on the basis of a reason that she cannot see as a justifying reason. The idea can be put in terms of our capacity to pursue a vision of the good life, which is one way of understanding the idea of the pursuit of happiness. If I'm to be a full citizen in a diverse democracy, the legally enforced constraints on my pursuit of the good life should be justified by reasoning that I could accept merely as an equal citizen of the democratic polity and not as an adherent of any particular religion or religion-like belief system. Okay, so it matters not just what our legislators do, but why they do it. So let me put my thesis this way. It is proton-tomorally wrong for a legislature to limit fundamental liberties on the basis of reasons that other citizens could not accept without changing their most basic beliefs. So I might gloss this a bit. So first the phrase proton-to is one of these things philosophers throw in. It means that something is the case absent other overriding considerations. Thus absent other overriding considerations, it would be wrong for a legislature to limit fundamental liberties on the basis of reasons that other citizens couldn't accept without changing their most basic beliefs. But of course in a given case, there might be additional relevant considerations and these might be overriding. An example is a public safety consideration that limits your freedom of speech, say to shed fire in a crowded theater. Second, I'm going to keep our discussion here to fundamental liberties. I happen to like papaya banana mango smoothies. But a legislature might decide to prohibit such smoothies. Perhaps in practice such a law would be ununforcible or it might be foolish because it might spawn an immense black market, criminal syndicate specializing in papaya banana mango smoothies. That's a separate issue. My point is that I don't think that such a law would infringe a fundamental liberty. By contrast, a law that says that I cannot practice my rather odd type of reformed Judaism would infringe a fundamental liberty. For our purposes today, we don't need to find a criterion that just clearly distinguishes fundamental liberties from lesser liberties. We'll need to ask whether the liberty to seek assisted suicide is tied to a fundamental liberty. But to do so, I don't think we will need to address the general question. I should note also my focus is not only on religious but also on religious-like reasons. The category of religion can include more than traditional monotheistic religions. Supreme Court established this in the conscientious objection cases during the Vietnam War. Philosophically, this seems to be something most people tend to agree with. Who knows? Something called secular humanism might even come under the heading of religion-like. Not religion-like, I should say. Finally, I'm proposing a specific standard for the moral legitimacy of state action. Arguably, this standard is implicit and even close to explicit in some of the modern tradition of Western political philosophy and perhaps the constitutional laws will say it's implicit in some American constitutional law. To repeat, the underlying idea is that state action that infringes a fundamental liberty ought to be justifiable to those whose liberty is being infringed and the justification should be of a kind such that citizens could accept it, not necessarily would accept it, without having to change their own basic view of the world. So after all these preliminaries, let's finally think about the criminalization of physician-assisted suicide. As with any criminal law, this one infringes liberty. Here, the liberty of the patient and the liberty of the physician. Our first question about such criminalization is whether what is infringed is a fundamental liberty. To patients have, or persons generally, have a fundamental liberty interest in having access to physician-assisted suicide. It might be worth just noting here parenthetically that suicide is not illegal in many jurisdictions and normally, if it's legal for me to do something, it's also legal for me to get assistance in doing that thing. Or in any event, it looks as if the default ought to be that it's legal to get assistance in doing what is otherwise a legal act, but we can put that aside. Now I want to be clear on what's at issue. It's not whether a patient has a claim on a physician or on the healthcare system to be assisted in committing suicide. It is whether a patient has a liberty right to receive assistance if a physician is willing to offer it. I do have a liberty right, at least at present, to drink a papaya banana mango smoothie. I do not have a claim right that anyone provided me with such a smoothie. At issue, for us, is a liberty to do something, not a claim that one be provided with anything. So what sorts of things count as fundamental liberties? Well, liberty has many functions, but I think that the two key functions, at least as political liberty is concerned, are to make secure at least some of the conditions for democratic government and to make secure at least some of the conditions for the individual's pursuit of happiness. So, is having the liberty to try to end one's life on one's own terms of fundamental liberty? It doesn't seem to be a political liberty. It does not seem to be connected to one's ability to participate in political activities or in the collective process of self-government. Still, it might well be thought to fall within the ambit of the pursuit of happiness. It could be argued that a choice about death is a basic part of the liberty to determine one's own life path in accordance with one's own basic beliefs and values. It would seem clearly wrong to criminalize on the basis of a legislature's sectarian religious beliefs a wide range of choices that people make in accordance with their deepest beliefs and their deepest sense of what's important in a human life. For instance, religiously prescribed dietary decisions, days of worship, and many other things. It's been argued that one's death is as important to part of one's life as these other things. So I want to make three claims about being allowed to attempt to die on one's own terms. The first tie is assisted suicide to something that we do see as morally permitted, namely the refusal of various forms of care that sustain life. My claim here is not that refusal of care and assisted suicide both aim at death and so are morally equivalent. That's an issue that comes up all the time, much disagreement about it. I want to be clear, that is not what's at issue here. My claim is going to be that at least part of what makes both permissible or provides a sufficient reason for each is the role that each plays in an individual's vision of life. The argument starts from the fact that we do permit people to refuse life-saving treatment. There are multiple reasons why we do so. However, I think that one of these reasons and in itself a sufficient reason is that we believe that a human life goes better when a person lives it in accordance with her deepest beliefs and values. That's why a refusal of treatment that does not seem tied to a patient's deepest beliefs and values, a refusal that seems arbitrary, is more troubling than a refusal that does stem from the patient's beliefs and values. An example of the first situation can be found in Siegler and Johnson, clinical ethics. You all know this case. A 24-year-old graduate student comes voluntarily to the emergency room accompanied by a friend. Previously in excellent health, he is complaining of a severe headache and stiff neck. Examination of spinal fluid leads to a diagnosis of bacterial meningitis. Administration of antibiotics is recommended. When he's told his diagnosis and that he will be admitted to the hospital for treatment with antibiotics, the patient refuses further care without giving a reason. He will not engage in discussion with the staff about his refusal. The physician explains the extreme dangers of going untreated, serious risk of death or permanent disability, and the minimal risk of treatment. The young man persists in his refusal and declines to discuss the matter further. Other than this strange adamancy, he exhibits no evidence of mental derangement or altered mental status that would suggest decisional incapacity. That's case one. Here's case two. Ms. W, a 35-year-old Jehovah's Witness, refuses a lifesaving procedure because it would involve a blood transfusion. She knows that to live, she must have a transfusion, but she chooses to die in accordance with the precepts of her religion. I don't want to get into, I mean, we could, I suppose, but I'm really not interested in debating whether paternalism might be justified in the case of the graduate students. I want only to note that I think most of us find the Jehovah's Witness case less troubling. That is, you might think that both of these patients are entitled to refuse lifesaving medical treatment, but my guess is that you will want to wrestle with that graduate student and try to convince him and talk to him, and in some way you're going to think something is amiss there, even if you agree that he has decisional capacity, and even if you agree that he ought to be able to receive treatment, but you will be much more at ease with the Jehovah's Witness. If I'm right about that, the question is why? And my hypothesis is that to interfere with Mrs. W is to interfere with her pursuit of her conception of the good life. To interfere with that by, say, compelling her to have a transfusion would, I think, seem to most of us highly problematic. It would seem, in effect, to impose a vision of the good life upon Mrs. W. Whereas with the graduate student, it doesn't look as if that's what you're doing, but the graduate student has any vision of the good life that's tied to the refusal of treatment in this case. So the next step in my argument is this. If witness-type reasons, what I'll call religious-type reasons, are sufficient reasons for being permitted to refuse lifesaving treatment, then such reasons are also sufficient reasons for permitting assisted suicide, at least per tanto. You can see this easily enough. There's a religion, call it religion R, that's, say, much like mainstream Christianity or Judaism or Islam, except that it holds that a devout believer ought not to wish to continue life when she's clearly going to die in a suffering great pain. Religion R holds that such a form of suffering and debility is at odds with God's love and with God's plan for human beings. It's at odds with what it is to be made in the image of God. Religion R holds that assisted suicide is appropriate for believers because conditions of a certain kind and for whom there is no other path to a voluntary peaceful death. Now, one argument for permitting the witness to refuse treatment was that doing so, and this is, I think, a sufficient reason, would enable her to end her life in accordance with her deepest beliefs and values. So now we'll imagine a Mr. M, an adherent of religion R, and he feels the same way about assisted suicide. If he's unlucky enough to have a terminal condition to be in great pain, he'll believe. And let's assume that the clergy of religion R would affirm the point. They would affirm that God would prefer him to die rather than continue to exist under conditions of misery in a way that's at odds with God's plan. The same reason that makes it seem proper to permit Ms. W to refuse life-saving treatment seems to make it proper to permit Mr. M to avail himself of assisted suicide. Keep in mind, what we're talking about is what reasons we have to make certain things legal, not for providing them. So it's perfectly consistent with this point for you to think that you as a physician would not feel comfortable helping Mr. M to commit suicide. The question here is, what should the law have to say about it? So the final step of the argument should be obvious. Both the federal courts and our own ordinary morality have held for several generations that what counts as religion does not take a theistic form. As I said, that was the basis of the conscientious objector cases during the Vietnam War. Rather, one's beliefs must merely play the kind of role in one's life that powered on cases of religious belief play in a traditional religious believer's life. About this general issue, at least in constitutional terms, Justice Jackson famously wrote in 1843 in West Virginia State Board of Education versus Barnett, if there's any fixed star in our constitutional constellation, it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism, religion. So that's my central argument. The central argument that assisted suicide is tied to a fundamental right, fundamental liberty rather. It's a general argument and it's not tied to any particular view of the good life. But I want also to note a way in which continued life under certain circumstances might seem to a person to be at odds with her view of what is important and profound in human life. Now, I'm giving this example, again, not as a substantive example that I want to stand by myself, but rather as an example of how a reasonable person might have a view that has the kind of structure and depth to it that would tie it into the request for assisted suicide, kind of structure and depth, that's a traditional religions and other kinds of deeply held values might involve. So, drawing on work by Elaine Scarry, the philosopher David Sussman, has argued that pain can make next to impossible the process of making decisions, of judging that this action is better or worse than that, of seeing something as a reason to do or to forbear from doing something. Once humanity in the sense of the features that distinguish one from other types of mammals becomes much reduced, and if the only way to manage the pain would be via sedation that dramatically decreases awareness that hardly counts as restoring agency. The point is that one might believe that a feature of what makes a human life human, makes it a life that seems worthy of being lived, has been removed by pain and or sedation, and that one is in no sense any longer engaged in the pursuit of happiness. Such a condition seems sufficiently imminent. One might think that it would be more in keeping with one's beliefs about what is a value in a human life to terminate one's life before this condition is onset. Similar point is made by another philosopher, David Bellemann. Bellemann, interestingly, has written important work that raises serious questions about the propriety of assisted suicide. It's not at all clear that on the whole he's always in favor of it, he's extremely interesting philosopher Bellemann is, but he's also explicit that there can be a conception of dignity that would push us to see the choice for assisted suicide as part of a basic vision of human life. Here's Bellemann. When a person cannot sustain both life and dignity, his death may indeed be morally justified. One is sometimes permitted even obligated to destroy objects of dignity if they would otherwise deteriorate in ways that would offend against that value. The moral obligation to bury or burn a corpse, for example, is an obligation not to let it become an affront to what it once was. Librarians have similar practices for destroying tattered books and honor guards for destroying tattered flags out of respect for the dignity inherent in these objects. These examples suggest that dignity can require not only the preservation of what possesses it, but also the destruction of what is losing it if the loss would be irretrievable. Again, I'm not invoking Bellemann's examples as part of a substantive argument. I'm invoking them to show that someone might reasonably view a thing that she calls dignity as sufficiently important in her life that for her forbidding her from assisted suicide would count as the same kind of affront as forbidding the performance of religious act. So I've focused on the reasons to permit physician-assisted suicide, but we also need to look at the reasons induced to prohibit it. In general, there tend to be two classes of reasons for doing so. That is for legal prohibition. Now, one class of reasons would invoke the intrinsic wrongness of assisted suicide. I can't simply go through all the arguments that have been made along this part, but what my suspicion is that if one takes any intrinsic wrongness argument and probes it, it's ultimately going to rest on a religious or religion-like thesis. It will amount to the claim if, for instance, the legislature is invoking it. It's going to amount to the claim that their view of human life is superior, better than the view of the citizen who is seeking assisted suicide. My argument has been that in moral terms, and I think consistent with Justice Jackson's remarks in West Virginia Board of Education, perhaps in constitutional terms, I will let Valerie tell me about that and Ann Dudley, but in moral terms, it would seem to me that this would be at odds with a defensible account of political legitimacy in a modern, diverse democracy to, in effect, tell a patient your vision of the good life is the wrong vision, and that's why you're not permitted to avail yourself of assisted suicide. The other class of reasons would be instrumental. These rest on empirical premises, and that's where my earlier protanto caveat comes in. The legislature's job is in part to regulate liberty. It's part of its job to constrain liberty if the costs or the risks involved in liberty's exercise are too great. Traffic laws, seat belt laws, et cetera are obvious examples. The question is, what kind of burden must the legislature meet in order to be in a position to say that the exercise of a liberty is too risky? Let's return to my pension for papaya banana mango smoothies. Suppose it turns out to be difficult to make sure that such smoothies are safe to consume. There's some weird chemical interaction among your fruit that could be toxic if you don't take very careful methods in producing it. And maybe it's really difficult to regulate such things. So the legislature, out of a concern for safety, might decide to just prohibit that particular form of smoothing. I'd be opposed to this. But would I think that the legislature had overstepped its bounds? No. And would I think that they need really compelling empirical evidence? No. And that's because the liberty to have a papaya banana mango smoothie is not a fundamental liberty. But suppose instead that the neo-Nazis want to march again in Skokie as they did in I think it was 1977. Suppose the town of Skokie says that to permit the march would be too costly in terms of the number of extra police to be hired in order to maintain order and so forth. Here the town of Skokie has a very large burden to meet because freedom of assembly is a fundamental liberty. Again I'll leave it to the lawyers to say whether this burden can be cast in the constitutional terms in terms of political legitimacy there remains a large burden because of the importance of the liberty of freedom of assembly. So my claim is simple. The choice about how one dies is more like freedom of assembly than like the freedom to drink papaya banana mango smoothies. If I'm correct in that then there is a high burden on the state. The state will have to meet up a high burden unless it's assisted suicide or excessive. I'm in no position to judge whether it's likely that the state can meet this burden. This is an empirical question like all empirical questions. It could be answered yes or no. So it is possible that upon due reflection we would decide that although assisted suicide does is tied to a fundamental liberty the risks of making a legal are too great. So it is at least worth keeping in mind two things. One is that many of the risks associated assisted suicide at this point often made are have analogs with respect to the withdrawal of life sustaining care. In each case one might be worried that the patient is being pressured. One might wonder does the patient have adequate capacity? Does the patient really understand? There's a whole set of things that one might genuinely and properly be worried about. To the extent that practice over time seems to have made the American medical system reasonably comfortable with how it is that we judge that it's appropriate to exceed to a patient's request to withdraw life sustaining care. That suggests that at least over time we could become reasonably comfortable with a set of regulations for what's involved in committing assisted suicide. Second point would be that if this is a fundamental liberty, tied to a fundamental liberty we ought to have serious empirical work, serious evidence available before we criminalize it. That is meeting the burden to show that the risks are excessive should not be based on mere speculation. If the thought is that what goes on when you criminalize assisted suicide is that you infringe a serious liberty then you can justify that only if you really do have good evidence. You might get it, but you shouldn't just speculate. Finally, here there's an old metaphor about the laboratory of the states where the thought is that it's kind of fortunate that we have these 50 jurisdictions in the United States because if they go around doing different things what some particular thing is a good idea whether, for instance, it can be effectively regulated if we permit it to happen in lots of states we'll have data. We'll be able to see whether or not this particular form of regulation works adequately, that one is not so good, and we might over time come to some acceptable convergence on what really works. Now, I'm going to close with a couple of reflections about the problem of a slippery slope. The worry about any slippery slope is about drawing a line in a principled way. Keep in mind that the mere fact that it's difficult to draw a line doesn't mean that a line can't be drawn, and the mere fact that the line itself will be more of a gray area than a clear line need not make it the case that the areas outside of the gray area are not distinct. Aristotle begins serious ethical analysis in the western tradition by stressing that in ethics we ought not to look for the precision that we demand in mathematics. His point is that if we demand mathematical precision in ethics, we'll find that we can't get it and then we'll fail to make the progress in ethics that we are in fact capable of making. So now let's confront the question of how far this is the slippery slope question it might be appropriate to extend a principle of government non-interference of permitting legalization of assisted suicide. The strongest case for assisted suicide, the one that most I think most up for grabs is something various states might legislate, is with a patient who has decisional capacity who's terminal in the sense of being highly likely to die within some relatively short time frame and who is in considerable untreatable pain. Yet there seems no obvious reason why the principle of government non-interference should be limited to such cases. Let's confront the case of a person who suffered a disability who could live many more years who's not in terrible physical pain who has gone through whatever counts as the standard adjustment period after suffering the disability and who is now after due consideration and after whatever form of psychiatric consultation was deemed appropriate prefers to end his life rather than to continue to live in a way that in his eyes is blighted by his disability. May the state regulate assisted suicide in such a way as to preclude its application to this person's case? I want to get this case out there because it's the obvious case that people will worry about if assisted suicide is legalized. That there will be a slippery slope from patients who are in a terminal state to patients who are very much not. Now, tear-jerking novels have been written about cases like this. No doubt tear-jerking novels make for rather bad political morality, but they at least show that our intuitions can be torn and conflicted. So let me try to put the point as clearly as I can. I think it's going to be the case that for any set of regulations designed to ensure that a non-terminally ill patients decision one is on coerced. Two is made with adequate information. Three is made after adequate reflection and so on. Whatever your set of hedges is supposed to be for any such set of procedures, there will surely be some patients who will satisfy all of these regulations and will still ask for assistance in ending their lives. In such cases, I doubt that there's a reason to make assisted suicide illegal that doesn't amount in practice to imposing on the patient a conception of what is most important in life and in death. So I do suspect that the principle of government non-interference is what I'm giving a bad label to the thought that assisted suicide should not be illegal. I do think that it will probably extend to such cases. That troubles me. I hope that in practice such cases would be very rare and I'd be in favor of considerable regulation to give life as much of a chance as possible, but I'm hard put to see why at least in principle and with appropriate regulation such cases must be excluded from the scope of what is morally permissible, at least in the sense of political morality. Finally, just to repeat something I said earlier. That's how I'm going to end. Nothing I've said today entails anything one way or the other as to whether assisted suicide would have become legal. It would be permissible, obligatory or impermissible for physicians to provide assistance to those who after appropriate regulation do consideration, etc., still wish to die. That's an entirely separate question from the question of the moral propriety of criminalization. Thank you very much. I hope there are going to be lots of questions. So, please, questions. I knew Dan would have objections. Go for it. I'll start. Thanks. It was very, very fine, thoughtful, thought-provoking. I think there are at least three underlying premises that you didn't defend and I want to make sure that you at least accept that they're part of the argument. One in the sort of, I'll start from the backwards and go, or the last ones and go to the first ones. The first is in the sort of pain example that you gave distinguishing saying that they're really, it would be worse to be sedated than to be killed, right? In fact, is based on a premise that the rule of double effect and what one intends versus what one foresees and does not intend is not a legitimate distinction in order to be able to sort of, I think, make that argument. Second, going back to the equal protection argument that you make, that sort of we have a right to refuse treatment, right? Why can't we then have the possibility enacting our death through euthanasia or assisted suicide would also depends on the premise that there isn't any defensible distinction between killing and allowing to die, which is, again, I think made more explicit in the philosopher's brief that you base your arguments on. And then lastly, the very beginning and maybe the strongest premise is that there isn't any non-religious argument that can be made about keeping assisted suicide illegal and just along those lines we go back to some other things in J. David Bellamon's writings where he talks about interest independent value, right? And one can, in fact, argue that the very basis for liberty is recognizing the value of the person whose interests we are trying to protect by recognizing their liberties. And while you might not agree with that argument, I wonder whether or not that isn't a kind of a line of argument which would be a non-religious argument which would be sort of, you know, intrinsic without actually being not any favoring any particular conception of life it's about the argument from liberty itself. Those are three big questions maybe you just want to answer the last one and just sort of say whether you think those other premises are part of the argument as well. So the last one. That is it is my contention that a patient's belief that treatment would undermine her vision of what is important and meaningful in life is in and of itself a sufficient basis for refusal of treatment. And one could have the same view about the condition of your own deterioration and believe that that would undermine the meaning of your life and request assisted suicide to prevent that. That has nothing to do with the Diplomat Double Effect. You and I disagree about that but it's independent of that. Similarly, the second the same thing that is the question is whether there is again what's up to the question now is whether the state should criminalize something. There could be a moral distinction that you want to hold between allowing to die and killing you. Yes, you and I disagree about whether that obtains in this kind of case. But what you'd further have to argue is that that's a moral distinction that is of a kind that the state should enforce it and one might perfectly coherently say that's actually itself not the kind of question that's appropriate for legislators wielding our coercive power to be in the business of trying to work with. So I want to get to your last question. That's the right kind of question. For any particular argument that's couched in religious or religious like terms, there could be a claim that's couched in terms of values that are sufficiently shared within a democratic polity that they are permissible for the state to take into account. What we have to do is look in great detail then at any particular such thesis with respect to this issue to see whether what you have is a value that is a sufficiently broadly shared that it doesn't violate the notions of political legitimacy that we're proposing and be sufficiently strong that it would override the general thought that one ought not to infringe somebody's individual liberty. Whether the general idea of the value of the citizen that I don't know that piece of elements would have that would be sufficiently strong. My impulse is to say I doubted but here we'd have to look very carefully I'd have to let you really develop and then to just have taglines back and forth. The court looked at the philosophy which had been filed this year and it was 1997 and in that opinion in unanimously nine years rejecting the idea that there was a liberty interest in assisted suicide. They took up that question and there were six opinions rejected at the and this is a court that is broadly divided in liberal and political philosophies and why was it that nine reasonably thinking people didn't accept your offer? I'm not going to speak to the constitutional jurisprudence. Keep in mind that what they said was that there is not a liberty interest that is embedded in the United States I'm not a constitutional lawyer so I'm not making the argument that they were wrong on constitutional grounds. The argument that I'm making is that when we ask what the whole idea of a fundamental liberty is one wants to ask why do we talk about such things? Why do we think that in general government ought not to infringe such things and ought to be held to a certain kind of standard for justifying reasons when it proposes to do so my thought which is simply that of the philosopher's brief no claims originality here is that liberty is important among other things because it enables you to lead your life in the way that you think is important according to your own beliefs and values and it's because liberty is important that way that certain specific kinds of activities ought to be protected such as religious liberty the protection of religious liberty of course in constitutional legal terms comes out of pragmatic considerations as much as anything else the need to end the wars of religion in the 17th century but if we abstract from that and say why should religious liberty be protected if we didn't think people would go to war I take it the answer is gee this is a fundamental part of what it is to have a vision of life that any kind of liberty worth having involves being able to pursue your vision of life assuming it doesn't harm others and that that's why it ought to be protected and now what I'm adding to that is the thought that for at least some people how one dies is part of a vision of how one lives that's why I quoted the vellum and peace and that if that is so then it looks as if the choice of how one dies is not a thing that the government should at least shouldn't infringe it except to regulate it and then we get into the question of what regulation is appropriate yeah concerning the whole notion of regulation I really like your argument I think you make a compelling one for the moral right for suicide while you make it my concern comes from the notion of regulation and government involvement and the bureaucracy and the tendency for that to make a mess of things and how that impacts on the whole argument from a moral perspective of whether or not the government should be in the should take it on itself to sort of direct this kind of undertaking I mean that's an interesting question there is I mean here I defer to the people in the room you have practices I take it that make you sufficiently comfortable when patients either refuse life saving care or ask to have life saving treatment withdrawn and I guess I don't know whether the law has played a role in the evolution of those practices I doubt that you think much about the law in the course of daily activities there but presumably over time people doctors have come to some set of understandings about what counts as sufficiently informed consent what counts as a moment when you say okay this patient gets it whether or not I agree with the particular decision it seems to me the thing for me to do is to let the patient die all I'm proposing is that over time we might come to similar understandings with respect to assisted suicide whether the best way to come to such things is through the creation of one or another government bureaucracy whether or not to be run through medical organizations I have no view one mentions government bureaucracies rather than medical organizations because one option here would be that assisted suicide would be made legal but physicians would not be involved in it that you'd have some sort of separate subspecialty Thanatologists or whatever who have whatever counts as the appropriate training and if that would be the case then you probably want to have a brand new sub-profession self-regulating to begin with you'd probably want to have the government in there but exactly what the best form of regulation over time would be that's again that's where the idea of the laboratory of the states would come in hopefully over time one would begin to see what would work and what doesn't Professor Broadney extending your slippery slope slide further when do you think the government would be legitimately prohibiting assisted suicide I mean you think of examples of a group of people just wanting to commit suicide at age 30 is there where do you see that line being drawn now keep in mind that we're talking about a liberty right not a claim right so keep in mind that even if I have a liberty to do something doesn't mean that anybody has a duty to help me so I'm not suggesting for instance that there's any organization that so I mentioned someone with a disability who finds life not worth living I'm not suggesting that anyone has a duty to help that person die so that's one thing just to be clear about but just to now to take your example sort of head on I'm not quite sure what a regulation would look like that would be appropriate to criminalize voluntary activity that is keep in mind that by hypothesis you're assuming that whatever you think of as the appropriate procedures for making sure that someone does not have clinical depression fully understands the consequences of what he or she is proposing to do understands all the data about how over time what adjusts and you know if you want to say the data shows that after a couple of years people get back to their baseline of happiness you could say we won't even think about this until after whatever those years are but as I say for any set of regulations that you're going to propose in principle someone will pass through every single hurdle and at that point I have to admit I'm not quite clear why we should criminalize what a person on due reflection after being psychiatric evaluation after all these hurdles if they wish to do it unless you think that suicide itself should be criminalized right I go back to the proposition that if you think that suicide should not be a crime and of course people might think it is but then we get to the question what's your reason for thinking that it is or is this simply the original reasons for criminalizing suicide were explicitly religious Locke says we can't commit suicide because we're not our own property we're God's property so it's kind of theft if you committed suicide but once you move away from that and if you think that suicide what not to be criminalized then it becomes harder and harder to think why the state should forbid assistance with it I don't think that's correct that suicide all things considered even a slightly religious object is not a good thing in society problems are part of it and doesn't see it as a positive even though it's not a criminal action anymore however assisted suicide which involves more than one part of the situation it's not exactly the same as suicide and I think you could clearly see that assisted suicide may equally be an undesirable societal benefit and we strongly against it even though why you're not criminalizing a regular suicide so I think here you want to distinguish different things that a state does a state has the power of the purse has the power of the sword and it has the power of voice all that I'm arguing is that its use of the sword ought not to be motivated by reasons of a kind that could not be of the sort that those who will be subject to their coercion could find acceptable what Dan was suggesting is there might be such reasons that might be weighty enough as I said there we'd have to really go to the mat with the details of the reasons to set that out but this is separate from the proposition that the state might be permitted to use its voice to discourage assisted suicide philosophers this is an area of philosophy that's very poorly dealt with for the most part philosophers still think of the state as simply an engine of coercion as an engine of coercion and theories of the legitimacy of state action are almost entirely tied to the question of the legitimate use of coercive power but that's just a mistake about most of what a modern state does and it's not obvious to me that the argument that I've given also applies at least completely to the use of the state's voice so there are things that it's okay for the state to say that it's not okay for the state to do for instance if we have you have some white supremacist religion it's wrong for the state to shut it down I see no problem with the mayor of a city saying the values of this supremacist religion are at odds with the values of my city and our citizens and we find them despicable our police will protect them from being harmed and so on and so forth but we think they're despicable so here voice and coercion can come apart in terms of the legitimacy of state action so I'm perfectly willing to at least countenance the possibility that it would be appropriate for the state to have greater freedom to criticize and argue for and in various ways agitate against assisted suicide and those who engage it that's different from criminalizing it I don't want this audience to leave with a feeling that there is a univocal decision in Glucksburg four justices specifically said we don't need to reach the question of a protected liberty interest assisted suicide at this time because there is no state that has prohibited adequate pain relief at the end of life and Souter, O'Connor Stevens and Breyer all explicitly said if a state were to limit pain relief at the end of life we would have to re-confront the question of whether there is a constitutionally protected liberty interest in some cases of assisted suicide it's a it's a decision or a pair of decisions that are only superficially unanimous they're very conflicted thank you this is why I said I would not go into the constitutional law because I don't know it thank you for bringing it up and soon after that what H.W. Joseph said the use of opiates of per capita rose to be number one or two in the federal previously, Oregon had been in the lobby of the person so in fact it appeared although the causation is already established it appeared that the legitimation and the argument of assisted suicide increased the use of alienation and usually without the state and increased hospitals that is the alternative to assisted suicide rapidly encouraged my question is about suicide itself not doctors at them and I think I understand the importance of value of life because if the value is diminished then we do not value other people people may waste their life on some of the things is due to harm other by committing suicide but I wonder if you could explain to me why some people who are so strong on autonomy like Kant and yet he opposes suicide and why like to know why is strong on this side and a strong on that side and what is the philosophical basis as you understand it so the specific thing that Kant says Kant's own argument is a pretty bad one but putting that aside we could try to help Kant out and his answer would be that what he thinks of as supremely valuable what ties human beings to God and the angels if there are any and separates us from other mammals is what he calls our capacity to set ends and he thinks that this is very is more valuable than our capacity for sensation and he thinks that inevitably the choice to commit suicide involves valuing with the reduction of pain more than the maintenance of agency of the capacity to set ends and this is therefore a failure to understand what is a value and a functionally means treating your own capacity to set ends as a tool to pain reduction and as such you're treating yourself as a mere means so that is that's the Kantian thought you have to buy to accept this argument you have to buy Kant's thought that our capacity to set ends is what's so important that agency is supernally important and therefore any way to use it is for ends that are at odds with agency is forbidden if you say agency is pretty cool it's pretty cool we can make choices I'm all in favor of that but no it's not the most overriding thing then Kant's argument is going to fail thanks I'm very curious about the the line you and many others seem to draw between physical disability and psychiatric disability that is to say if it's okay for someone to say I choose not to live with this disability I choose not to accept a treatment for it and therefore to request assisted suicide why is it not okay for a psychiatric patient someone with a psychiatric disability to say I choose not to live with this disability or the life that the treatment would give me I'm I'm open on that one it's a slippery slope it's how far down the slope one goes and excuse me in part because it has to do but here I need to defer to the professionals in the area to judgments about the possibilities of recovery and if in fact a particular patient's condition was such that it was just unsupportable and the professionals in the area were converged on the thought that for this patient there's simply no hope of this misery being alleviated in any manner shape or form then we may get this kind of argument I don't want to blink at the thought that you start with the argument with respect to non-criminalizing terminal cases but as I say I see no philosophical reason why that's where the line is to be drawn good operational reasons because you're not making much of a mistake if the patient's already terminal you're making a bigger mistake if the patient is not but once you move away from the class of terminal cases then I think it would bear real serious reflections to try to figure out whether psychiatric misery is for these purposes to be thought substantively different from the suffering of any other kind this I think is again where you're going to have to see how things work that is offhand I'm going to agree with you and say that the fact that a person wishes to die is a flag is a reason to think something is amiss and therefore it's a reason for serious scrutiny for psychiatric evaluation and so on and so forth could there be someone who simply has existential angst who is not in pain of any kind and who is not depressed and has no psychiatric disability but just has read Sartre too much or something like that I mean I hope they'd first come to a decent philosophy course and get disabused at certain things but yes that's where the slope might lead and that then again goes to the question of on the one hand do we have non-religious reasons for forbidding and on the other hand do we have adequate regulatory resources to save this