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Friday, April 01, 2005
A Specious Right
In the wake of the Terri Schiavo torture-murder, a great many Americans are thinking about filing a "living will," which specifies a desire not to be artificially sustained should one someday be placed in a helpless condition. Many fail to realize the danger they'd place themselves in by doing this. Virtually no one realizes how cataclysmic this practice and the respect being granted to it by the legal system are for the foundation of all rights: the right to life.
A real will, which specifies a deceased person's intentions for the distribution of his property, provides an important point of comparison. Such a document is often contested post mortem, on the grounds that the deceased was of "unsound mind" or "not a free agent" when he made it. Such a contention is upheld most frequently when there is evidence that:
- Some other party exercised undue influence on the terms of the will;
- The deceased was in no condition to avert the pressure, and therefore did not possess a free choice;
- Subsequent events and conditions deflected, distracted, or made it effectively impossible for the deceased to change his will before his demise.
The underlying logic is, of course, that a will is a kind of contract, and no man may be held to the terms of a contract if his assent to it was coerced. Unfortunately, when a will is set aside, for this reason or any other, the forces that determine the disposition of the deceased's property are seldom particularly concerned with what he really wanted, regardless of their representations to the contrary.
The "living will," which formally expresses a desire not to be kept alive by artificial means, is supposed to be a mere extension of the personal autonomy of the maker. After all, a living, competent man has an unchallengeable right to refuse any and all forms of medical treatment, food, fluids, even air to breathe. Why should he not be granted the right to pre-specify his desires in the event that a catastrophe leaves him no longer able to express himself?
There are many reasons, actually, but for the present your Curmudgeon will confine himself to the two most compelling ones.
First, the evocative formulation "right to life," despite the compactness of the phrasing, has implications that crosscut both humanity and good sense. Too many people read the phrase as "right to live," which would imply a positive burden on others to sustain one's life at their expense. The real right is a right not to be killed -- that is, an obligation upon others not to do lethal harm to the rights-bearer. This is a defensive right, the only sort that can be defended without throwing the entire concept of rights into terminal incoherence.
Therefore, the "right to life" does not imply a complementary "right to die." If anything, it would argue against such an implication. For the "right to life" has been justly deemed inalienable -- that is, it cannot be traded away, for any consideration or none. If it were otherwise, Smith could sell himself to Jones as a slave, which has been expressly forbidden by the Thirteenth Amendment to the Constitution of these United States.
The justification for state-mandated executions also rests on the right to life -- the right to life of a murderer's victim. Justice in sentencing is always a matter of making the victim whole, if possible, or failing that, exacting a proportional retribution upon the criminal, to remove his "gains" and deter others from doing as he did. By invading Jones's right to life, Smith forfeits his own right to life, which the state, with the concurrence of a jury of Smith's peers, may then bring to an end.
Second, the "living will" is, like any other document, an expression of one's sentiments at a particular moment in time -- a moment at which the conditions to which it applies do not prevail. Such sentiments can easily change, perhaps many times, between the making of such a will and the occurrence of the conditions it affects. How many persons would revisit their "living wills," say twenty or thirty years after making them? How many persons would nurture feelings of guilt about having made them -- guilt they were inhibited from expressing, out of embarrassment over having once been that immature? And how many persons given charge over a helpless relative would conveniently erase any oral expressions of a change of heart from their memories, for whatever reasons?
The central operating principle of American justice has been that an individual's rights are to be respected unless and until he is convicted of a crime that warrants their suspension. So critical to our jurisprudence is this assumption that a judge is empowered to reduce or set aside a criminal sentence, but is absolutely barred from imposing one that a jury of private citizens did not ratify by unanimous vote, under a standard of "absence of reasonable doubt."
More, when an individual descends from "moral agent" -- one who is cognizant of his situation and is conceded to understand the consequences of his actions -- to "moral patient" -- one who is not conceded to understand his situation or its consequences -- the law is required to appoint him a guardian. That guardian is absolutely enjoined from taking action that would infringe upon the rights he holds in trust for his ward, most especially the right to life. The case is exactly parallel to a parent's relation to his child.
Therefore, the whole notion of the "living will," which "authorizes" a guardian to withdraw life support if one becomes incapable of expressing one's own wishes, is fatally flawed. Indeed, to grant it any validity at all undermines the fundamental premises of American law and justice.
This conclusion will be unpalatable to some, most particularly to doctrinaire libertarians, who've mistakenly embraced right-to-die nonsense as an expression of individual free choice. But the logic remains as it is. The consequences of ignoring the logic, and the dynamics it foretells for a society that respects the "right to die" and the "living will" will not be evaded by subsequent hand-wringing and cries of "But that's not what we meant!"
Watch where you step.
Comments
Just how long is a guardian obligated to maintain life? For a child, it is 18 years. There should be some similar upper limit on the disabled and elderly. Otherwise, as life support technology advances, we are going to become slaves to our elderly, spending all our resources to keep them alive.
If I can keep Grandma alive for another year by spending $100,000 should I have a moral or legal obligation to do it? What if I’ve got the money, but I’d rather use it to send my kids to a good college?
Posted by on 04/01/2005 at 12:58 PMI thought there were long-term, end-of-life-care insurance policies that could significantly defray that cost.
Posted by on 04/01/2005 at 02:04 PMWell, the alternative would appear to be, instead, relying on whomever your “legal guardian” is to express your wishes when you cannot...and, if, like Ms. Schiavo, you’re married but your spouse has “gone rogue” at that point, this is a problem. Yes, the burden of dishonor falls upon the rogue spouse, but nevertheless, the law would still force one to live by their actions--or, as with Ms. Schiavo, die by them. So is there any possible solution that both avoids the pitfalls of a “living will” and can avoid the deadly trap that Ms. Schiavo fell into with her HINO (husband in name only)?
Posted by Erbo on 04/01/2005 at 02:14 PMI’ve said this before and I’ll say it again: I’m not going to bother with wasting my time with getting a living will. Why, so someone can “lose” it or “forget” or “look at the wrong one” and then “oops, guess we pulled the wrong plug”? I know what the ghouls are like: they don’t want to wipe grandma’s smelly parts and turn her over to prevent bedsores because they’re late for a date, or they had a fight with the wife, or something, and really, this old lady doesn’t have any relatives who visit her and she must be miserable in that condition anyway, and so on. They’ll get us in the end.
Posted by Andrea Harris on 04/02/2005 at 08:32 AMI remember back when the hospitals started offering DNR statements to sign when you were admitted. I thought it was ghoulish. I still do think it’s ghoulish. My usual response is “No. I don’t wish to sign anything of the sort.” I’m here to have my gall bladder out - if you clowns screw up so badly as to leave me comatose you’d better damn well fix me.
You can get “Will to Live” forms appropriate to your state HERE, if interested.
Posted by Deb S. on 04/03/2005 at 12:36 PM
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