Rights and Power; Life and Death September 16

On the November 6th ballot this year, here in Massachusetts, there will be a measure to permit physician assisted suicide.   

According to the Office of the Massachusetts Attorney General, the Act would allow terminally-ill adults with six months or less to live to receive and self-administer a prescription for life-ending medication. To qualify, a patient would have to be an adult resident of Massachusetts who is "medically determined to be mentally capable of making and communicating health care decisions; has been diagnosed by attending and consult physicians as having an incurable, irreversible disease that will, within reasonable medical judgment, cause death within six months; and voluntarily expresses a wish to die and has made an informed decision."

Doctors would be required to inform patients about other end-of-life care options, including palliative care, pain management, and hospice care. Two physicians must verify the mental competence of the terminally ill patient and the voluntary nature of the request, and three requests must be made by the patient for the prescription: two oral and one written. The Act would also allow the patient to change his or her mind at any time. No person would be civilly or criminally liable or subject to professional discipline for actions that comply with the law.

I have been increasingly of two minds on this question, and have been reflecting on my indecisiveness, comparing and contrasting the ethical standards that I am applying when I think one way or the other.  

The argument FOR it is a straight-forward “rights” argument.  People have the right to choose the circumstances of their own death, especially when they are facing an inevitable and imminent death.  It is a private and personal decision, and the government should not be involved.  It is our right. 

The government is all ready involved in one’s death, but only in this manner.  Were your physician to prescribe life ending medication to you, he or she would be criminally, civilly and professional liable.  It is against the law to help people commit suicide.  So the real teeth of the measure is the last sentence:  no person would be civilly or criminally liable or subject to professional discipline for actions that comply with the law.

But it also appears that health care providers have often have other reasons why they do not assist people in suicide.  Their work is to prevent death and assisting suicide seems off mission to many -- both from habit, and from ideology and from moral reservation.  

But understand that the impetus for this law does not come from doctors who fear that they are going to get into trouble for practicing medicine as they see fit.  The impetus is from the patient side, and even then from two groups: the families of the terminally ill, and people who are concerned about the future possibility that they might end up in that terrible place of declining slowly and inexorably toward inevitable death.  

The issue, however, gets framed from the point of view of a potentially terminally ill person who wishes to invoke his or her “right to die” under his or her own terms. 

Rights arguments assume a fundamental equality between all citizens.  If I have a right, then you have an equal and mutual right. 

Rights arguments also assume competence to make a free choice to exercise those rights.

You can see this in the language of proposed measure:  The patient’s mental competence must be established and documented.  Multiple medical professionals need to be consulted, to prove both that the terminal diagnosis is accurate and that the patient is of sound mind.  It must established that he or she has the communication skills to tell of their wish to die in more than one way, including written forms.  

All of these are to establish the equality of the person as he or she exercises his or her right to choose death over suffering.

Because this is a rights arguments and equal rights for all are a core value for liberal religion, the Unitarian Universalist Association has long been in favor of these death with dignity measures.  By which I mean, that it has passed resolutions in favor of them.

A different frame through which to look at this question, as opposed to a rights frame, is a power frame.  A power frame does not assume that individuals are equals in a social contract and thus entitled to equal rights.  A power frame assumes that in every situation, there are inequalities of power -- that there are the weak and strong.  Our job, as humanists (people who make moral judgements with an aim toward maximizing the good for humans); our job as humanists is to determine where the power lies and to ask if it being exercised compassionately, humanely and in the best interest of all of the people, especially those with limited power. 

Many of the opponents of the death with dignity ballot measure are basing their moral reasoning on this power frame. 

Some, like the Second Thoughts, an organization that comes out of the disabled community and opposes the ballot measure, see the government and the insurance companies as the powerful agents in the health care system as end of life approaches.  After all, they control the purse strings.  They fear that physician assisted suicide will become a mechanism for controlling health care costs by hastening people into voluntarily dying sooner.  And it can be used to push people toward earlier deaths.  After all, suppose you would be told that further treatments would not be covered by the insurance company, or Medicare. Your choice would be to seek those treatments impoverishing your children, or choosing death.  One conservative group called Physician Assisted Suicide “Death Panels on Steroids.”  

Power analyses do look at the financial incentives and possibilities in social arrangements.  That argument can go either way. One argument that I read this week in favor of the ballot measure pointed to the large financial interests that health care providers (doctors and hospitals) presumedly have in keeping people alive and continuing to ply them with expensive treatments, surgeries, medications and tests.  

My own concerns with this measure are exactly in this line, although I don’t fear the same institutions as threats to the well-being of the terminally ill.  

Let’s face it; the terminally ill and the elderly are among the most vulnerable people in our society.  Often bed-ridden, non-communicative and dependent on others for help in the most basic human functions, these are people entirely dependent on others.  

Dependency and vulnerability allows for abuse.  

While I have not been able to find numbers for the terminally ill, I have found statistics on the prevalence of elder abuse -- both those living at home with relatives and those living in nursing homes and other facilities.  Elder abuse, neglect and exploitation occur to somewhere between 2% and 10% of elderly people, by those on whom they were dependent for care.  

All of this -- the physical violence, the neglect, the financial exploitation are theoretically illegal.  Yet, the government and the authorities have limited capability to actually protect the powerless and vulnerable among us from their abusers.  One of the ways that you know that you are a powerless person is that you live in a zone beyond the protection of the law:  the only rights that you have are the ones that those you depend on recognize.  

Given this, the fact that the law includes a whole series of safeguards to protect the the terminally ill person from making a rash, uninformed and fatal decision to end their life -- well, I don’t think that they mean much.  

Suppose a person is coerced and manipulated into making a decision to end their life early.  What recourse will they have?  Well, perhaps if such a person’s children had access to lawyers and such, they could sue or seek redress.  But what is the point of that? 

The question that I have when I look at this issue from a power perspective is this:  can we sure that we are able to protect the powerless, the terminally ill, the dependent, in a situation in which their voluntary death is on the table.  Or have we invited the lions and the lambs to sit down at the same dinner table? 

And I am not sure that legal guarantees in the measure will be sufficient to protect the powerless -- after all, if we cannot prevent grotesque forms of physical and even sexual abuse of elders, how well will be assured that the terminally ill may be coerced or manipulated into an early death by their caregivers? 

Liberal Religion in this century has been shifting its moral reasoning from a “rights” basis to a “power” analysis.  Creating a just society is not simply determining exactly what rights all people have on an equal and mutual basis.  Justice does not come from creating the perfect mix of rights and responsibilities in the abstract and then applying that schema across the board.

No, the obstacle to justice, say those who support a power analysis as the core of  creating justice, is not that we have not all agreed on a mutual and equal definition of rights and responsibilities, but history.  We have injustice in this world because we have always had injustice because we have always had power differentials and those with more power have used to it for their own benefit.  Injustice is not just inequality before the law -- it is inequality in power.  

The recognition that human society has always been unjust, and that those with less power are usually oppressed and exploited is a radical shift in social theology for liberal religion.  For the longest time, liberal religion was based on an enlightenment social anthropology.  It was a rebellion against the traditional Christian theology of a fallen Humanity in rebellion against God, a humanity which needed to be controlled by the combined power of the state and church.  

During the Enlightenment, liberal Christian theologians advanced a different argument.  The state was not created by God; it was the voluntary association of free human beings who joined into a social contract, in a pre-history beyond our view.  Good humans gave up their sovereign power to form a government, preserving however their basic God-given Rights.  Unfortunately, humanity has never been able to get these rights and responsibilities in exact proportion.  For example, is the right to die on your own terms part of your rights or not?  We are still arguing over that.  

But increasingly, we have come to know that the story of the social contract is a myth, and not a history.   It is not the true history of humanity.  Instead, powerful people have controlled, oppressed and exploited other human beings since the very beginning.  In fact, we may be still carrying out the social practices of pack or herd animals -- wherein some are dominant and others subordinate for no known reason, but they are.

Given a power analysis of the question of physician assisted suicide, it may be a minor skirmish.  Some people who have access to excellent health care, strong social support systems, and good legal advice want the power to end their life on their own terms when terminally ill.  While it may seem harmless enough when dealing with people of such station in life -- what will mean to those whose lives are less protected?  For those, who are not guaranteed good health care?  For those whose families are dysfunctional and abusive?  For those who are powerless and vulnerable?  

How will this affect what Jesus called the least of these?

These are the questions that liberal religion is turning ourselves toward. 
These are the questions that I urge you to consider between now and the November election.  
I make this prayer today:

“O God of Many Names, beyond all our naming, awaken us to the needs of this moment in time.  Let us know of our power, and of our powerlessness, and let us be guided by compassion for those who are vulnerable and at risk.  Let us seek justice, not in theory, but in practice, and with great humility......”


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