Friday, September 02, 2022

Abortion and Physician Assistance in Dying: A Sherry Colb Classic

[Editor's note: The following column first appeared on Verdict on March 23 of this year, after the Dobbs oral argument but before the leak or release of the opinion. Sherry's linkage of the Court's abortion jurisprudence to its no-right-to-die jurisprudence was prescient: Justice Alito's Dobbs opinion leaned heavily on the test for unenumerated rights articulated in the Glucksberg case, despite the fact that it had been essentially repudiated already. The linkage was also more direct. Sherry believed strongly in what she called a right to a peaceful death, as reflected in the column republished below, a completed but not yet published draft of a law review article (which I'll see through to posthumous publication on her behalf), and her personal choices: had her illness not worsened so suddenly, she had planned to travel either to Switzerland (where non-citizens are permitted to physician aid in dying) or possibly Oregon (where the same is at least theoretically possible pursuant to a settlement signed in March of this year) to end her life on her terms when the time came. Although she had excellent palliative care in her final week, that was an imperfect substitute.]

Abortion and Physician Assistance in Dying

by Sherry F. Colb

During the Mississippi abortion case argued earlier this term, the attorney defending the prohibition invoked the case of Washington v. Glucksberg, which the Court decided twenty-five years ago. In Glucksberg, the Court held that the government may prohibit physician assistance in dying for patients suffering end-of-life pain and wishing to control the timing and circumstances of their deaths. The more humane among the Justices who signed onto the 9-0 decision essentially said “let them eat palliative care” in rejecting the claim that people have a fundamental right to end their lives when their suffering has become too much to bear. In this essay, I will consider the relation between the abortion right and the right to physician assistance in dying, both of which will enjoy no constitutional protection under the religious extremist majority that now rules the Supreme Court.

Commonalities from the Court’s Perspective

From the perspective of the Supreme Court of religious extremists and the religious extremism-driven states that wish to prohibit both abortion and physician assistance in dying (PAD), the commonality between its agendas with respect to the two is obvious. In both cases, opponents of individual autonomy in these two contexts take the view that the state has a compelling interest in preserving human life, and both abortion and PAD appear to threaten that interest. From their perspective, a zygote or clump of cells is a “life,” and there can be no fundamental right to take a “life.” And likewise, when a dying patient suffering the end-of-life pain that none of the Justices likely understands, seeks to end a life, namely their own, that too is the taking of a life. Once again, there can be no fundamental right to take a life.

Another Perspective

The reader has certainly picked up my disgust in the face of this perspective, a perspective that—without coming right out and saying it—holds that God decides when we all live and die and that no humans—no pregnant women and no suffering patients—are entitled to make the decision. Without a vision of God as the one with a moral monopoly on such decisions, no one sane would consider a cell or clump of cells or otherwise plant-like assortment of cells with no sentience whatsoever to be an equal of an existing child or adult. With God, on the other hand, a fertilized egg looks so much like a child (and so little like what it actually is—a cell) that the devout seem to find counterarguments incomprehensible. They claim, among other things, that “the science” tells us that we have a person with moral status at the moment of conception. Since the most basic person who studies science knows that an “is” cannot give us an “ought,” this claim is an embarrassment. The science tells us no such thing. And morality tells us that what makes a “person” requires something distinct from human DNA.

Without God, we likewise would have empathy for a person who is suffering terminal pain who sees a long hallway of bedridden existence punctuated by painful injections and nauseating “pain killers” and would say “of course I would never deny such a person the right to end their own life.” Euthanasia is the only area where we give greater consideration to the suffering of our companion animals than we do to the suffering of our fellow humans. Why? Because we believe that human life is so valuable that even the person whose life it is has no fundamental interest in saying when it has become too difficult to bear. That too is a religious extremist conception of the value of life. God says that killing is sinful and that suicide is sinful, and that is the end of the conversation. How can there be a fundamental right to do something sinful?

Since the religions that govern most people in the U.S. regard nonhuman animals as having no inherent worth at all, a religious person is free to notice that it is cruel for someone with a cat to keep the cat alive when she is close to death and suffering great pain. But if human life belongs to God, then great pain no longer counts as an argument against coercive legislation that imposes the will of the majority (perhaps) on a suffering individual approaching his death. It is not surprising that the devout have little empathy for someone at the end of life who wishes to die; feeling righteous about one’s cause is a very effective empathy blocker. Just think of the women executed as witches in Salem if you doubt the proposition that religious extremists and other self-righteous individuals can easily block their empathy in the face of an atrocity.

Which Is a Stronger Claim?

Some people I have consulted about the matter say they regard the claim of the right to die to be stronger than the claim of the right to abortion. Their thinking is that there is not even arguably “someone else” to consider when considering PAD or euthanasia. A person is claiming a right to end their own life, not someone else’s. By contrast, according to some, the abortion right involves a claimed interest in ending a zygote’s life or an embryo’s life or a fetus’s life, so maybe the balance of equities might be a bit different. I think this contrast is revealing, though not for the power of the substantive argument. It is revealing in that it correctly notes that—without some notion of God getting to make life and death decisions—it is blindingly obvious that a patient should have absolute authority over whether they wait and wait and tolerate bedsores and other indignities and suffering and pain. To quote a film about the right to refuse medical treatment, “Whose Life Is It Anyway?”!

In addition to revealing that without a God principle, the right to die should obviously be recognized, the abortion part is telling as well. The notion that a zygote or embryo or non-sentient fetus is “someone else” whose interests could outweigh those of a pregnant woman is a product of two things: first, the religious extremist thinking that treats clumps of cells as children; second, the proliferation of religious extremist thinking such that even secular people have come to think of human raw materials as children. It is here important to observe that pregnancy is a reproductive process. What do I mean? I mean that contrary to the beliefs of religious extremists (including their representatives on the Supreme Court), reproduction does not end with fertilization followed by mommy carrying around the homunculus who just gets bigger. Instead, fertilization provides the raw materials, and pregnancy then actually creates a child out of those raw materials. Early thinkers claimed that the man provides a miniature human being to the woman, and she then just grows the perfect little human into a perfect larger human. Though we now know this androcentric model is nonsense, the so-called “pro-life” view proceeds as though it were the truth. If a cell is a little person, then abortion really does involve killing “someone else.” Luckily, a cell is not a person, and anyone capable of thinking about the issue in a non-results-oriented way will understand that. Raw materials, of course, do not count as “someone else” and therefore should have no right to occupy a woman’s internal system, to impose physiological burdens and risks as well as emotional agony if the woman does not want to reproduce. Compelled reproduction would, absent a God part of the narrative, obviously be a human rights abuse.

Conclusion

In short, the abortion issue and the PAD issue have several things in common, from the perspective of those who oppose these rights and from the perspective of those who support them. In both cases, moreover, we can see the role of religious extremism and God in determining the hostile reception that both rights are now going to receive from the U.S. Supreme Court. The advocate for forced pregnancy and birth who argued the Mississippi abortion case was right to link the two issues, even though he was wrong in urging the Court that both rights deserve no protection. If we are empathic as well as clear-eyed in seeing what is at stake in these two contexts, we will keep that empathy in mind as we navigate the next few years of the Leonard Leo Court. He has the right to his devout Catholicism, but other rights exist too, rights that a religious extremist Court will be unwilling to honor or recognize.