When Treatment Is in Question
By Robert P. George
From a moral vantage point, it can be, though it will not always be, permissible to decline medical treatment—even potentially life-saving treatment—when one’s reason for declining the treatment is something other than the belief that one’s life, or the life of the person for whom one is making a decision, lacks sufﬁcient value to be worth living. What we must avoid, always and everywhere, is yielding to the temptation to regard some human lives, or the lives of human beings in certain conditions, as lebensunwerten Lebens—lives unworthy of life.
Since the life of every human being has inherent worth and dignity, there is no valid category of lebensunwerten Lebens. Any society that supposes that there is such a category has deeply morally compromised itself. As Leon Kass recently reminded us in a powerful address at the Holocaust Memorial Museum, it was “enlightened” and “progressive” German academics and medical people who put their nation on the road to shame more than a decade before the Nazis rose to power by promoting a doctrine of eugenics based precisely on the proposition that the lives of some human beings—such as the severely retarded—are unworthy of life.
The principles by which we must be guided do not depend on sectarian religious belief. At the same time, they are in harmony with the teachings of the Jewish and Christian traditions. These traditions proclaim the inherent worth and dignity of every human being as a creature made in the very image of God (imago dei). In our own culture, the Catholic Church has played a leading, if far from exclusive, role in defending these principles when they have come under attack by proponents of abortion and euthanasia. The Church herself has not put these ideas forward as matters of special revelation, but as matters of natural law that all people of good will can understand.
The role for public authority in enforcing these norms is, ﬁrst of all, to ensure that no laws are premised on the proposition that some lives are lebensunwerten Leben. And public authorities should protect people from being victimized by other individuals, or by institutions, who would treat some lives as unworthy of life.
The police always have the right and, where it is within their power, the duty to prevent suicide (except now in Oregon under certain circumstances). Even where attempted suicide is not punished as a crime, it is decriminalized rather than, strictly speaking, legalized. It is not given the status of a legal right (except again in Oregon). When the police ﬁnd a guy perched at the edge of a bridge getting ready to jump, their job is to stop him and prevent him from going through with it if they can, because the law refuses to honor even a person’s own judgment that his is a life unworthy of life.
Back to the question of declining medical care: Our afﬁrmation of the inherent value of human life does not entail the belief that one must always accept life-prolonging treatment. There are legitimate reasons for declining medical care—often it’s burdensome in nature; often it interferes with the opportunity to spend the remaining time one has in the embrace of one’s family in the home rather than in an institution; sometimes it’s the bankrupting expense that is involved. Where a patient declines treatment for such reasons, death, though foreseen and accepted as a side effect of one’s decision, may be outside the scope of one’s intention, and one’s choice need not be regarded as suicidal.
At the same time, however, we know that our decision as a society to recognize a right to refuse treatment, though it is the morally and prudentially correct decision in my view, will open certain limited opportunities for abuse. There will be circumstances in which people who want to do away with themselves will be able to accomplish the goal by exercising the right to decline life-saving medical care. And there will, alas, be circumstances in which some people, exercising so-called substituted judgment, make unjustiﬁed “choices for death” (to use the language of euthanasia-advocate Ronald Dworkin) for people for whom they are supposed to be caring. It is important to see, however, that the law does not validate such choices. It treats abuses as unfortunate but unavoidable side effects that must be tolerated and cannot prudently be eliminated without sacriﬁcing important values and objectives.
This, by the way, the Supreme Court actually managed to recognize in the assisted-suicide cases, when the justices unanimously rejected a right to assisted suicide while at the same time accepting the traditional common-law understanding that people have a right to decline even potentially life-saving medical treatments. The justices implicitly relied on the distinction between intending death and accepting death as a foreseen but unintended side effect of an otherwise upright act. Among the points the justices made was that the law should not deny painkilling narcotics to patients who are suffering, even if a side effect of the painkillers is the shortening of life. That’s entirely consistent with the moral norms I am here explaining and defending, and which the Judaeo-Christian tradition endorses.
In the case of Terri Schiavo, there was much wrangling over what her wishes were, but that was the wrong question.
In the case of Terri Schiavo, there was much wrangling over what her wishes were, but that was the wrong question. It is pointless to ask whether Terri Schiavo had somehow formed a conditional intention to have herself starved to death if eventually she found herself in a brain-damaged condition. What was really going on—and I don’t think we can afford to kid ourselves about this—was that Terri’s husband decided that hers was a life not worth having. In his opinion, her continued existence was nothing but a burden—to herself, to him, to society. He presumed to decide that his wife was better off dead.
Even if we were to credit Michael Schiavo’s account of his conversation with Terri before her injury—which I am not inclined to do—it is a mistake to assume that people can make decisions in advance about whether to have themselves starved to death if they eventually ﬁnd themselves disabled. That’s why living wills have proven to be so often unreliable. One does not know how one will actually feel, or how one will feel about one’s life and the prospect of death, or whether one will retain a desire to live despite a mental or physical disability, when one is envisaging it from the perspective of more or less robust health.
In any event, it is clear that Michael Schiavo considered Terri’s “quality of life” to be so poor that he wanted her to be dead. He claimed that she would have wanted that too, which I don’t grant, but even if he was right about that, we should have treated her like anyone else who wanted to commit suicide. We rescue; we care; we remain in solidarity; we do not abandon. We afﬁrm the inherent value of the life of every human being. Our governing principle should be always to care, never to kill.
As for the proper limits of the federal government’s authority, I don’t see that any just authority of the State of Florida was being displaced by the effort of Congress to ensure that Terri’s right to life was honored and that civil rights claims on her behalf were given a hearing in the federal courts. I am not impressed by appeals to “federalism” to protect the decisions of state court judges who usurp the authority of democratically constituted state legislative bodies by interpreting statutes beyond recognition or by invalidating state laws or the actions of state ofﬁcials in the absence of any remotely plausible argument rooted in the text, logic, structure, or historical understanding of the state or federal constitution. The fact is that, under color of law, Michael Schiavo was seeking to deprive Terri of sustenance because of her condition of disability. Under federal civil rights statutes, this raises a substantial issue. It cannot be waved away by invoking states’ rights.
The federalism argument is more plausible in the case of Oregon’s assisted suicide law than it was in Terri Schiavo’s case. It wasn’t some judge in Oregon who manufactured a right to assisted suicide or claimed to ﬁnd it hiding in a penumbra. I think the people of Oregon in adopting a regime of legally sanctioned assisted suicide made an unwise—indeed, tragic—decision, but it was a decision made by the democratically constituted people of Oregon. I am not here proposing to settle the question whether there are legitimate grounds for the federal government to override that decision; but I am saying that the federalism argument for not overriding it is far weightier and more serious than it was when trotted out as a reason to keep Congress from acting to prevent Terri Schiavo’s being starved to death at the command of her husband.
Robert P. George is the McCormick Professor of Jurisprudence at Princeton University and a member of the President’s Council on Bioethics. He is author of the books In Defense of Natural Law; Making Men Moral; and The Clash of Orthodoxies. This column is revised from an interview with George conducted and posted by National Review Online in March 2005, and appears in this form with NRO’s permission.