Expressivist Concerns for Assisted Dying on Request

Abstract

The expressivist objection argues against the legalization of euthanasia and/or assisted suicide (EAS), on the grounds that EAS laws express a disrespectful judgment of certain classes of people: roughly, that they are better off dead. Recently, some ethicists have argued that laws which require only an informed, competent, and voluntary request for EAS would avoid the expressivist objection, since that objection depends on the further requirement of irremediable suffering. In this paper, I argue that—for better or for worse—this response fails to address the expressivist objection. This is because reasoning parallel to the original expressivist objection demonstrates that even EAS laws with an informed, competent, and voluntary request as the sole requirement express a disrespectful judgment: that it is reasonable to believe that certain classes of people are better off dead. Objections to this argument depend largely on a conception of autonomy which minimizes the role of motivations—specifically, motivations which we ought to recognize as reasonable. Although this conception is supported by some bioethicists, it faces challenges of its own. Until those challenges are addressed, therefore, an appeal to less demanding EAS laws does not by itself avoid the expressivist objection.

INTRODUCTION

Euthanasia and/or assisted suicide (EAS) legislation is increasingly popular. In the course of writing this article, for example, members of the UK parliament voted to approve assisted dying for terminal illnesses. Canada’s “medical assistance in dying” or “MAiD” regime has recently expanded to include those with non-terminal conditions. And, not long before that, Germany’s Federal Constitutional Court ruled that assisted suicide (but not euthanasia) is permitted on the basis of an informed, competent, and voluntary request alone—no medical condition required [1–3]. But disagreement looms. Some have argued against the legalization of EAS,ⁱ on the grounds that EAS laws express a disrespectful judgment that people suffering from certain medical conditions are better off dead [4–6]. In response to this expressivist objection, others have claimed that the preceding judgment is only expressed by EAS laws which require medically-based suffering for eligibility. EAS laws which require the patient’s informed, competent, and voluntary request alone, those which resemble the German ruling more than the British or Canadian laws, therefore seem to avoid the worry [5, 7, 8].

I argue here that this response to the expressivist objection is inadequate. That objection does typically claim that a disrespectful judgment is expressed by EAS laws which require medically-based suffering. But it does not follow from this that EAS laws only express a disrespectful judgment when they include that requirement. More concretely, I argue here that EAS laws which require an informed, competent, and voluntary request alone still express the judgment that people with certain conditions are reasonably believed to be better off dead. This judgment seems hardly less disrespectful than the original one, on which people with certain conditions are better off dead. It is worth emphasizing, however, that my argument says nothing about the conclusion of the expressivist objection (namely, as against EAS legalization). My point is only that the premise of the expressivist objection (namely, that EAS laws express disrespect) cannot obviously be defeated simply by appealing to the less demanding EAS law, contrary to what some bioethicists have suggested. For better or for worse, the expressivist objection is more resilient than that.

The paper is organized as follows. In section 1, I restate the expressivist objection a bit more carefully, and I describe the response to it which drops the requirement of irremediable suffering. After that, in section 2, I provide my argument for the claim above—again, that the requirement of an informed, competent, and voluntary request by itself gives rise to a disrespectful judgment. To anticipate somewhat, the argument says that once we get clear on the justification for said requirement, we see that it inevitably involves motivations which we would recognize as reasonable, and which therefore apply broadly enough to implicate those who do not want EAS. Section 4 concludes the paper, and objections are considered throughout.

1. THE EXPRESSIVIST OBJECTION AND EAS ON REQUEST

The expressivist objection has been posed in various ways [4–6]. I offer here only one version, without endorsement, based loosely on a reconstruction from Esther Braun [7]. Consider a law, permitting the use of EAS, which include two requirements. First, the patient must be suffering irremediably from a medical condition. Second, the patient must provide an informed, competent, and voluntary request (hereafter just “a suitable request”) for EAS. The first requirement is justified by the idea that the use of medical procedures should aim to make the patient better off in some objectively recognizable sense. After all, if euthanasia kills the patient, then killing them should aim to make them better off in the preceding sense—and that is something which could probably only happen if their suffering is both extreme enough to warrant death and grounded in some recognizable medical condition. But this justification incidentally suggests that some medical conditions really do make the people suffering from them better off dead. It suggests this even for those who suffer from such conditions without also wanting to die (since the basis of such a judgment is objective, and thus independent of their preferences). Consequently, such a judgment seems to condone a discriminatory, stigmatizing view of those in the preceding group: one which devalues their lives on the basis of a condition which they find tolerable. Since the law above was justified on grounds which implied this judgment, however, the law itself seems to express disrespect toward the group discriminated against. And this, one might think, constitutes a reason against EAS legalization [9, 10, 5, 11, 4].ⁱⁱ The same conclusion extends to any law with similar requirements—e.g., current law in Belgium, the Netherlands, Canada, and several U.S. and Australian states.

The source of the disrespectful judgment above is the requirement of irremediable, medically-based suffering. Some bioethicists have therefore suggested that, if this requirement is removed from a proposed law, the resulting discriminatory judgment would vanish along with it [5, 7, 8]. This in turn suggests that proponents of EAS could respond to the expressivist objection not by abandoning EAS legislation entirely, but by adverting to a less demanding law. Such a law would allow the patient to receive EAS when she suitably requests it, with no further requirements necessary—what I will call “suitable request” EAS, or SR-EAS” for short (cf. “autonomy-only” [8, 12], “autonomy-based” [7], and “autonomy-centered” EAS [12]).ⁱⁱⁱ SR-EAS has been defended before on independent grounds. Davis and Mathison, for instance, argue that the suffering requirement (at least in its Canadian form) ultimately collapses into a version of SR-EAS [12]. Or consider Holzman’s argument that SR-EAS might avoid some “morally problematic discrepancies between” the theoretical motivations for and practice of EAS (in the Netherlands) [8]. The expressivist objection might therefore be seen as yet another path to SR-EAS, rather than as an argument against EAS more generally.

2. HOW SR-EAS IS STILL EXPRESSIVELY PROBLEMATIC

Nevertheless, this response to the expressivist objection appears to overlook a crucial assumption. It seems plausible that SR-EAS avoids the expressivist concerns raised above, because it lacks the suffering requirement from which those concerns arose. But this leaves open the possibility that similar concerns also arise from the suitable request requirement. If such a possibility could be motivated, then the SR-EAS response to the expressivist objection would become toothless.

As a matter of fact, I think that such a possibility can be motivated. The basic idea appeals to the justification for a requirement of suitable request, much as the original expressivist objection appealed to the justification for a requirement of irremediable suffering. In this case, the justification is that the use of medical procedures should demonstrate respect for the patient’s autonomy (a goal best achieved by requiring their suitable—in particular, their voluntary—request). But what is the sense of autonomy relevant to this justification? We can distinguish at least two senses here.

A patient is autonomous in the first, thin sense roughly when they are able to request EAS in a suitable and otherwise “procedurally adequate” way,^iv irrespective of their personal motivations for the request [13]. For example, suppose that I persistently request EAS. Suppose also that I demonstrate an understanding that EAS will kill me and that I have other options, I show no signs of underlying psychiatric or other illness that affects my decisional abilities, and it is clear that no one is coercing me into making my request. In that case, my request demonstrates thin autonomy (at least with respect to my EAS request). This is true even if the motivations for my request are highly unusual. I remain thinly autonomous, for instance, even if I have requested EAS because I believe that I am unforgivably evil and I desire to destroy anything so vile.^v In contrast, a patient is autonomous in the thick sense roughly when they are thinly autonomous and we would recognize the motivations for their request as reasonable.^vi It is difficult to say exactly what makes a motivation (recognizably) reasonable.^vii At a minimum, however, it requires that motivation to be virtuous in some epistemic sense: it needn’t be true, but it must be understandable, appropriate, respectable, or some such thing. If my hypothetical request for EAS was motivated by a belief in my unforgivable evil and a desire to snuff it out, I would probably not demonstrate thick autonomy (with respect to my EAS request; cf. similar examples in [14, 15]).

Of these two options, respect for thick autonomy is arguably more relevant to the justification of a suitable request requirement for EAS [16]. Certainly, this justification must appeal at least to the patient’s thin autonomy, without which a requirement of suitable request would be inexplicable. But it must also appeal to the possession of recognizably reasonable motivations—in other words, to that which turns thin autonomy into thick autonomy. This is because respect for merely thin autonomy justifies an absurdly lax requirement of suitable request. I would satisfy this requirement, for example, in my hypothetical self-hating request from above. It simply doesn’t matter, when a suitable request is bolstered by respect for thin autonomy, whether my motivation is a recognizably reasonable one. Similarly, as Davis and Mathison point out, a “despondent teenager” who requests EAS because he can’t get a date could also satisfy the requirement of suitable request by thin autonomy [12]. The authors are quick to point out that this result is not as absurd as it might seem. For such a teenager must still meet the stringent demands of thin autonomy. But this response overlooks the sheer breadth of motivations compatible with those demands. Even a cheerful teenager, who requests EAS because he gets too many dates, could satisfy the requirement of suitable request as justified by respect for thin autonomy. Again, it simply does not matter whether we recognize his motivations as reasonable (or indeed as positively unreasonable). This result—namely, that the cheerful teenager could be permissibly killed by medical professionals despite both his good health and a longstanding prohibition of intentional killing—seems too counterintuitive to accept without further argument. Those who would justify an SR-EAS law’s requirement of suitable request by appeal to respect for thin autonomy therefore owe us that argument. In contrast, respect for thick autonomy seems to get us a requirement of suitable request without the counterintuitive drawbacks. This suggests that thick autonomy is the superior choice.

It is important to note that the appeal to thick autonomy is nevertheless a controversial one. Ethicists continue to debate the importance of recognizably reasonable motivations in, for instance, the assessment of capacity/competence [17, 18].^viii Some policymakers ignore the role of such motivations altogether (the aforementioned German ruling, for instance, appeals to something like respect for thin autonomy) [2]. Nevertheless, the cheerful teenager objection is meant to put pressure on those who prefer thin to thick autonomy, specifically as a justification for EAS laws with a requirement of suitable request alone. If this pressure cannot be borne, then SR-EAS laws require a respect for thick autonomy which leads to the expressivist objection below. But note two further points. First, even if this objection can be met—even if the counterintuitiveness of EAS for the cheerful teenager can be explained away—an expressivist objection might still arise. This would require an argument to the effect that a respect for thin autonomy also entails some disrespectful judgment of a certain class. Such an argument is beyond the scope of this paper. But, as the discussion below suggests, it is not inconceivable. Second, meeting the cheerful teenager objection would at most resolve the expressivist worry for those who justify suitable request by respect for thin autonomy. Those who are, for independent reasons, committed to the relevance of thick autonomy, will continue to face that worry.

But let us now derive the disrespectful judgment in question. All parties to the dispute should agree that a hypothetical patient can suitably request EAS when she requests it because of her belief that her painful medical condition makes her better off dead. This is, after all, the paradigm case of (intuitively) permissible EAS. But we just saw that the requirement of suitable request is most plausibly justified by appeal to respect for the patient’s thick autonomy. So, we should also recognize our hypothetical patient’s motivation as reasonable. That is to say, we should recognize it as reasonable for her to believe that her condition makes her better off dead. It seems arbitrary, however, to recognize this reasonableness only for the belief as held by the patient. This suggests that we should also recognize it as reasonable for anyone to believe what the patient believes—more simply, that it is reasonable to believe such a thing, full stop. It is then logically irresistible to generalize from the patient’s situation to others like it. In other words, if we should recognize it as reasonable to believe that the patient’s condition makes her better off dead, then we should also recognize it as reasonable to believe that anyone like the patient is better off dead. To do otherwise is, again, to arbitrarily deem a belief reasonable when it concerns the properties of a specific person but not the same properties of a person similar to them.

One might agree that we can generalize to “anyone like the patient,” while insisting that no one is like the patient other than the patient herself. This is true on a very strict reading of “likeness.” But the stricter that reading gets—such as to generalize to fewer and fewer people—the less we can recognize any reason in the patient herself. For example, “anyone like the patient” might mean “anyone with the patient’s particular genetic makeup and history of experiences.” We obviously couldn’t generalize very far on such a reading. But then the belief that her condition makes her better off dead must have really meant that her condition, understood as belonging to someone with her particular genetic makeup and history of experiences, makes her better off dead. (If it didn’t mean this, then there would be no basis for reading “likeness” so strictly.) Such a belief might somehow be reasonable. It stretches credulity, however, to demand that we can recognize that reasonableness. After all, recognizable reasonableness seems at least partly intersubjective. It involves standards which other people can apply, in principle, to more than one circumstance. And this means that we cannot use such principles to assess the reasonableness of extremely specific or particular beliefs—beliefs, like the genetic-experiential one above, which could not possibly describe anyone else. Since we have already concluded that such a belief should be recognized as reasonable, “likeness” cannot be read so strictly.

This means that we should recognize it as reasonable to believe that anyone like the patient is better off dead, where “likeness” is at least fairly broad. How broad is it, more exactly? All we need to generate a discriminatory judgment is that it be broad enough to include some people who do not want EAS.^ix I submit that any plausible reading of “likeness” will be broad in this sense. For example, given what we have recognized above, we should also recognize it as reasonable to believe that anyone with a medical condition roughly similar to those of our hypothetical patient, in roughly comparable socioeconomic circumstances, and so on, is better off dead. This is bound to include many people who do not want EAS. Many more are included when we repeat our reasoning for other hypothetical patients (motivated by other conditions). We are now asked to recognize it as epistemically virtuous—as understandable, appropriate, respectable, or what have you—that a probably quite large group of people are, despite their protests, better off dead. If the judgment described by the expressivist objection counted as discriminatory, then surely the preceding one does too. More carefully, the proponent of that objection will not consider this new judgment acceptable without further argument, which undermines the point of an appeal to suitable request alone. Furthermore, the new judgment followed from the justification for a requirement of suitable request, together with some plausible auxiliary premises, just as the original judgment followed from the requirement of irremediable suffering [19, 20, 7].^x The resemblance to the original expressivist objection is obvious [5].^xi So, EAS laws requiring a suitable request alone do not avoid the fundamental point of that objection.

It is tempting to reply that there is a plausible enough reading of “likeness” which excludes those who do not want EAS. The reading is simple: “anyone like the patient” just means “anyone who wants EAS”! This reading is broader than the appeal to a unique genetic makeup and experiential history. It also does not immediately contradict the presumption of thick autonomy, because it supplies a motivation—one which just happens to be fairly thin—for the patient’s request. And, clearly, generalizing from this motivation will at most yield the judgment that it is reasonable to believe that people with certain medical conditions who also want EAS are better off dead. Since this judgment obviously fails to include those who do not want EAS, perhaps no discriminatory judgment arises under SR-EAS laws after all.

In response to this challenge, we must simply ask: why does our hypothetical patient want EAS? If nothing motivates her desire for it, then we will not recognize that desire as reasonable, and thus we will not recognize as reasonable the request for EAS which that desire motivates. We must, however, recognize that request as reasonable—this already followed from her suitably requesting EAS under thick autonomy. So, something must motivate her desire. On pain of circularity, it cannot be that her desire motivates itself: it must be a different motivation, such as the fact that she views her life as burdensome and painful. But then the discriminatory judgment rearises even under the proposed restriction of “anyone like the patient.” We will be able to generalize to the judgment that it is reasonable to believe that people with certain conditions who view their lives as burdensome and painful are better off dead—precisely because these are the people like our patient, once her motivations for wanting EAS have been taken into account. This judgment will once again apply to many people who do not want EAS. It will probably do the same even when other motivations for desiring EAS are considered. And this is because, again on pain of circularity, those motivations must be something other than a simple desire for EAS—something which, therefore, might apply to others who do not desire it.

3. CONCLUSION

I have argued here that, despite appearances, one cannot simply avoid the expressivist objection by appealing to EAS laws with a requirement of suitable request alone. To be sure, proponents of the expressivist objection are themselves partly to blame for this appearance. They are the ones, after all, who pin disrespect on the requirement of irremediable, medically-based suffering. It must also be acknowledged that my argument appeals to certain premises which might be contested. I have tried to show, however, that contesting these premises incurs a heavy burden (roughly, the burden imposed by the case of the cheerful teenager). Whether that burden is bearable must be left to opponents of the expressivist objection.

In any case, none of this shows that the expressivist objection—with or without the suffering requirement—succeeds as an argument against EAS legalization. I am, in fact, inclined against its success on that front. The reason for my inclination is simply that, even though EAS laws might well express disrespect, such expression is by itself no basis for overturning or blocking the passage of a law. Further elaboration on this reason would, of course, require a project of its own (such as that pursued in Brent Kious’s [21]). For the opponent of the expressivist objection, however, that elaboration is worth considering as the most plausible alternative to a suitable request-only appeal.^xii If the arguments of this paper are sound, after all, that appeal leaves the expressivist objection totally untouched.