Wednesday, October 31, 2018

Justice O'Connor and our Future Selves

by Michael C. Dorf

In my latest Verdict column, I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born.

Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened to the point that he needed 'round-the-clock care in an institutional setting. With his memory compromised, he developed a relationship with another resident of the facility. Justice O'Connor, in a display of incredible grace and generosity, supported him in that relationship, even as he lost his memory of her. (The parallel with the film Away From Her was widely remarked upon a decade ago.)

Having lost a dear friend to early-onset Alzheimer's and having seen the impact of dementia on others, Justice O'Connor's situation leads me to wonder about a set of questions that have legal, moral, and ultimately pragmatic dimensions: To what extent, if any, should fully competent adults be able to limit the freedom of their future selves should they succumb to dementia?

Suppose that Jill and Jim have been happily married for many years. Jill worries based on her family history that she may eventually develop dementia. She expressly instructs the doctors, nurses, and staff at the facility where she would be housed in the event that dementia develops to prevent her from forming a romantic relationship with any of the other residents, at least while Jim remains alive. She makes this commitment out of love for Jim but also out of what she perceives as a moral obligation of fidelity to her wedding vows.

Now imagine that the sad day arrives. Jim remains mentally and physically fit, but Jill needs institutional care for dementia. In this state, Jill forgets Jim and her wedding vows. She meets another resident, Dave, at the facility. She flirts with him and is about to start a relationship. How should the staff respond?

Let us assume that the facility does not have a general policy forbidding residents from forming and acting upon consensual romantic relationships. Let us also assume that while Jill has substantial memory loss, she has the capacity to consent or not consent to the relationship and any associated activity. Put differently, even in her current state, if Jim were not alive or if Jill had not made the prior commitment, there would be no question that she would be permitted to form and act on the romantic relationship. And let us also assume that the relationship is, in a hedonic sense, in Jill's interest. She will be happier in the relationship than if it is denied to her.

I presented the foregoing example to various of my colleagues, who directed me to a vast literature in the philosophy of personal identity and related matters. One such colleague asked me why the question isn't simply whether Jill is now competent to consent to the new relationship. After all, we allow people to change their minds about all sorts of profound commitments. If she's competent, why hold Jill hostage to her former self?

My tentative answer to that question is that while Jill is competent to consent to the relationship and the associated activity, she is not competent to make a choice to reject the person she has been for most of her life. Competence is not an all-or-nothing one-size-fits-all proposition. There are, I think, degrees of competence and competence for various purposes. That judgment might bear on the issue presented in the currently pending SCOTUS case of Madison v. Alabama, where it is argued that the petitioner's inability to remember his crime renders him incompetent to be executed, even if he is not necessarily incompetent in all ways.

But I don't want to confuse the issue too much by treating it as a legal question. I don't even necessarily want to treat it as a moral question. Perhaps it would be morally permissible for Jill's current caregivers to choose either path--allowing Jill the pleasure and comfort she would gain from the relationship with Dave or honoring the wishes of the person she used to be by restricting her. Even if either course would be morally permissible, however, Jill's caregivers still must choose one or the other. I'm not necessarily asking which choice is right and which wrong in a moral sense. I'm asking which choice they should make. That strikes me as a genuinely hard question.

Allowing pre-dementia Jill to restrict the freedom of future-Jill with dementia may seem continuous with other sorts of ways in which we allow present selves to make choices that limit the freedom of future selves. If Bob chooses to smoke cigarettes when in his 20s, Bob in his 50s may pay the price through poor health and/or a premature death. If Sally in her 20s, 30s, 40s, and 50s squanders her income on expensive vacations and luxury goods rather than saving a substantial portion of her earnings for retirement, Sally in her 70s and 80s will lead a less comfortable life than she otherwise would have. Given that we allow people to make these sorts of choices to harm their future selves for transient pleasures, is it really so difficult to imagine constraining Jill's freedom to honor a noble commitment?

Here's another case. Suppose that at some point in his 40s Morris becomes an observant Jew. In his 80s, anticipating the potential onset of dementia, he attempts to find a facility that will care for him that only serves Kosher food. Unfortunately, he cannot find one that meets his other requirements (such as proximity to his adult children). Morris makes arrangements to be cared for at a facility that can provide him with Kosher meals but that also provides residents with non-Kosher meals. He specifies in advance that he should only be served Kosher meals. Dementia overtakes Morris, and he moves into the facility. One day at lunch he notices that other people are being served pork chops. He asks the waiter to bring him one. The waiter tells Morris he gets the Kosher meal. Morris, in his dementia, does not recall having become observant and demands a pork chop. He becomes agitated. It is clear that he will enjoy the pork chop, but giving it to him will dishonor the express wishes of the person he was. (It would also contribute to demand for the suffering and slaughter of pigs, which concerns me as a vegan, but I put that issue aside, partly because I am assuming that the Kosher meal also is animal-derived.)  How should the directors of the facility respond?

If we think that pre-dementia Morris should have had the freedom to send his future self to a facility that only served Kosher food, then why should the fact that he couldn't find such a facility affect our judgment now? Drawing that comparison, we might say that the facility should honor the earlier-expressed wish for Kosher food: the cognizable harm in my hypothetical is not depriving Morris of the pork chop (which he also would have been deprived of in the all-Kosher facility) but allowing him to see that other residents were eating pork chops. However, there may be no way to avoid that harm without creating other, possibly worse, harms. Communal dining combats feelings of isolation. To spare Morris the sight of other residents eating pork chops, the facility might have to have him dine alone, which would be equally or more upsetting as permitting him to see and covet the non-Kosher food of other residents.

Does it matter that in both Jill's case and Morris's case, the wishes originally expressed are ones that society generally deems honorable -- respectively, marital fidelity and religious observance? Suppose that instead of Morris becoming religiously observant in his 40s, we are faced with Dolph, who became a Klan member in his 50s. Dolph is now horrified by interracial relationships, even though (or perhaps partly because) he was in one when he was a younger man. Pre-demential Dolph wishes to provide the facility where he will eventually be cared for with instructions to prevent him from forming a romantic relationship with anyone who is not white. Dolph with or without dementia has the freedom to form romantic relationships based on the race of his prospective partner. If we think that pre-dementia Jill is entitled to restrict the freedom of Jill with dementia to form romantic relationships entirely, why shouldn't pre-dementia Dolph be entitled to restrict the freedom of Dolph with dementia on grounds that would be permissible, albeit odious, in other circumstances?

The answer, I think, is that in all of these cases, others become complicit in the enforcement of the wishes of the earlier person against her or his respective future self. I'm not sure what the right answer is in the case of Jill or Morris, but I am somewhat more sure that Dolph should not be able to enlist his caregivers in his racist project. So the substantive aims of the pre-dementia individual do seem to matter.

And yet that troubles me, because there are likely many circumstances in which the pre-dementia individual has what I would regard as noble or at least innocuous aims that might be regarded by later caregivers as odious or at best silly. If it were to come to it, I surely wouldn't want my caregivers to make a judgment that veganism is a silly commitment and thus to serve non-vegan food to my future demented self, even if that future self would subjectively experience pleasure from it.

Accordingly, I am left with what I regard as a genuine dilemma, a clash between two sets of values -- or perhaps a clash of two implementations of the value of autonomy, one that respects the ability of a person to plan her or his life over time and one that respects the ability of a person to abandon a plan at any given time. I've found the philosophical literature I've looked at (including work by Michael Bratman, Robert Nozick, Derek Parfit, and others) very informative but insufficient to resolve the dilemma in a satisfactory manner. Perhaps the answer is out there in something I haven't read, or perhaps the dilemma is unresolvable.

In any event, I would be very grateful for comments, especially those that draw on related professional or personal experiences.