Always to Care, Never to Kill

Professor George has published widely on law, ethics, and philosophy in books, scholarly journals, and, too rarely, in articles for NRO. He previously served as a presidential appointee to the U.S. Commission on Civil Rights.

National Review Online: How should we go about thinking about the circumstances under which it is morally permissible to refuse medical treatment? What principles ought to guide us?

Robert P. George: From a moral vantage point, it can be, though it will not always be, permissible to decline 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 Museum, it was supposedly 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.

NRO: Just to provide greater clarity to the principle, could you explain how it applies to the cases of the killing of enemy combatants in wartime and of the death penalty?

George: Sure. Killing in war assuming that it is not a genocidal war is not done on the ground that enemy soldiers have lives unworthy of life. Where a war is just, the killing of combatants on the field of battle is done in self-defense or in the defense of innocent third parties who are victims, or potential victims, of an unjust aggressor. Even where a war is unjust, the reason for killing is typically something like expanding a nation's borders, gaining wealth, or avenging a perceived historical wrong. The exception again is a genocidal war, where members of certain groups are targeted for extermination because their enemies regard them as unfit to live. The Nazis killed murdered thousands of handicapped people and millions of Jews precisely because they regarded them as unfit to live. German soldiers some of whom were Nazis, some of whom weren't killed hundreds of thousands of British and American soldiers in battle, not because they regarded them as lebensunwerten Lebens, but in the cause of territorial expansion and world domination.

Now let's consider the death penalty. Its supporters typically do not claim that the death-row inmate has a life unworthy of life. That isn't their justification for capital punishment. Their claim, rather, is that the individual convicted of a capital murder should be executed because that is what justice requires as payment for his heinous crime. Their justification for the death penalty is retributive. (Of course, they may also believe that the application of the death penalty will prevent the murderer in question from repeating his crimes and perhaps also deter others.) They may fully recognize the inherent dignity and value of every human life, including the life of the murderer himself, yet believe that by wantonly taking the life of another human being the murderer has forfeited his own right to life. Some supporters of the application of the death penalty in the case of Karla Faye Tucker acknowledged that she had repented of her crime and reformed herself. They certainly did not regard her as unfit to live. Indeed, they believed that, if spared, she would probably devote her life to good causes. Yet they believed that retributive justice demanded her execution.

Of course, opponents of the death penalty, such as the pope, say that a due respect for the inherent worth and dignity of every human life, including the life of a murderer, forbids the death penalty except in circumstances in which it is the only way to prevent a particular murder from killing yet again. But the dispute between its supporters (in most cases) and opponents is about the moral implications of the principle that human worth and dignity are inherent. It is not a dispute about whether the principle is valid and ought to govern our deliberation about when, if ever, killing is morally permissible.

NRO: To what extent do these principles depend on sectarian religious belief?

George: Not at all. 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, albeit far from exclusive, role in defending these principles when they have come under attack by proponents of abortion and euthanasia. But the Church herself has not put these ideas forward as matters of special revelation. The Church's own teaching is that they are matters of natural law that all people of good will can understand and for which every mature individual in possession of his faculties can be held responsible. They're knowable by the light or reason and conscience even apart from the teaching of the Bible or the magisterium of the Church.

NRO: What's the role for public authority in enforcing these norms?

George: First, it is to ensure that no laws are premised on the proposition that some lives are lebensunwerten Leben. And not only must public authorities refrain from acting on any such premise, they 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. They are not merely supposed to try to ascertain whether he has carefully thought things through and made a rational decision to do away with himself, or if he's in a fit mental state to decide. They are supposed to prevent the suicide because the law refuses to honor even a person's own judgment that his is a life unworthy of life.

NRO: Back to the question of declining medical care

George: We know of course that there are lots of legitimate reasons for declining medical care. Often it's burdensome in nature; often it interferes with other opportunities that one might have, the opportunity for example to spend the remaining time one has, even if it will be shorter, in the embrace of one's family in the home rather than in an institution; sometimes it's the daunting expense that is involved. These can be morally legitimate reasons for declining medical care even where treatment could extend life a bit. But at the same time, 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 of 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. There is nothing odd about this. In many areas of law, possible abuses must be tolerated as side effects of honoring important values. We know, for example, that some criminals and their attorneys will abuse the procedural protections that our society affords to persons accused of crimes to escape just punishment. Yet we rightly consider certain protections to be essential to the system of justice.

Now 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. What the Court said is you can't deny people pain-killing narcotics even if a side-effect of the pain-killing narcotics is the shortening of life. That's entirely consistent with the moral norms I am explaining and defending, and which the Judaeo-Christian tradition endorses.

NRO: As you know, there's some question about what Terri Schiavo's wishes were or would be now. How much should turn on this question?

George: It is 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's really going on here and I don't think we can afford to kid ourselves about this is that Terri's husband has decided that hers is a life not worth having. In his opinion, her continued existence is nothing but a burden a burden to herself, to him, to society. He has presumed to decide that his wife is 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 not actually in that condition and when one is envisaging it from the perspective of more or less robust health.

Consider the case of a beautiful young woman an actress or fashion model perhaps who is severely burned in a fire. Prior to actually finding herself in such a condition, she might have supposed and even said, if the subject had come up in a conversation that she would rather be dead than live with her face grotesquely disfigured. But no one would be surprised if in the actual event she did not try to kill herself by starvation or some other means, and did not want to die.

In any event, it is clear that the only reason for Michael Schiavo's decision is that he considers Terri's quality of life to be so poor that he wants her to be dead. He claims that she would want that too, which I don't grant, but even if he's right about that, we should treat her like anyone else who wants to commit suicide. We rescue, we care. We affirm the inherent value of the life of every human being. Our governing principle should be always to care, never to kill.

NRO: What are the proper limits of the federal government's authority here?

George: I don't see that any just authority of the state of Florida is being displaced by the effort of Congress to ensure that Terri's right to life is honored and that civil rights claims on her behalf are given a hearing in the federal courts. By "just authority of the state of Florida," I mean the authority of the people of Florida to make laws through their elected representatives, subject to the provisions of the state constitution and the Constitution of the United States. 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 is seeking to deprive Terri of sustenance because of her 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 is 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 made an unwise, indeed, tragic, decision, but it was a decision made by the democratically constituted people of Oregon. Whether or not there are legitimate grounds for the federal government to override that decision, the federalism argument for not overriding it is far weightier and more serious than it is 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.

The other thing that Congress is being accused of is interfering in a family decision. Now look: Terri Schiavo has been abandoned by her husband. Michael Schiavo took a vow to be faithful to Terri "in sickness and in health, forsaking all others, 'til death do us part." But he has not been faithful; he has not forsaken all others. He has set himself up in a marriage in all-but-name with someone else, a woman with whom he already has two children. He has disrespected Terri and, indeed, forsaken her. Now he is seeking to bring about her death by starvation. Notice something wrong with this picture? Terri's parents and siblings, by contrast, have never abandoned her. They are prepared to shoulder all the burdens, including the financial burdens, of caring for her. They want to provide the therapy that many medical people who have observed Terri, whether at the bedside or by videotape, believe can help her. No one expects a full recovery, but it may be possible for her to make genuine progress. That possibility will be foreclosed, however, if she is killed by deliberate starvation before it can begin.