Moribund protest against ABC's Q&A assisted dying episode

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ABC TV's Q&A panel discusses assisted dying law reform on 9th Nov 2015

In a recent opinion piece in the ABC’s Religion and Ethics section, Bernadette Tobin1 rails against assisted dying, commencing with the criticism that the ABC’s Q&A discussion on the subject this week “lacked precision.” But Tobin’s opinion piece itself commits exactly this offence, as I explain.

For the sake of brevity I’ll only quickly mention that Tobin’s piece also fails on the score of accuracy. For example, she wrongly asserts that “euthanasia” means a doctor administering lethal medication to a patient. It doesn’t. “Euthanasia” simply means “good death”: nothing more and nothing less, regardless of how it occurs. Tobin also asserts that voluntary euthanasia in lawful jurisdictions has caused non-voluntary euthanasia to develop. This is the polar opposite of published empirical research evidence.

But back to precision. Tobin employs two imprecise and deeply flawed arguments in her objection to assisted dying. She variously rolls them in together, so let’s unpack what they are: (A) the “it’s only fair” slippery slope, and (B) “it’s OK if you don’t mean it”.

A: The “It’s only fair” slippery slope

Tobin directly links assisted dying for the terminally ill to “anyone who is in pain, discomfort, constipated, incontinent, depressed, anxious and so on” by way of potential “benefit”. She conjectures that increasing the restrictions to who may qualify, and the process of qualification, would then be “unfair” to these others. She then goes on to extend the argument to those lacking in decisional capacity such as infants and those with Alzheimer’s. Surely, she says, “it would be ‘unfair’ to deny these people the ‘benefit’ that we will make available to those who are able to request it?

Slippery slope indeed. And it’s wrong. Let me illustrate how, using a topic familiar in political debate over recent years: same-sex marriage.

Opponents of same-sex marriage law reform, when using arguments of the kind Tobin offers (as they often do), say that we can’t allow two men to marry, or two women to marry, because then we would have to allow three or more people to marry. Further down the slippery slope, we would have to allow people to marry animals. Don’t laugh: such things have been argued.

Next—given that under the Corporations Act 2001 (Cth), companies, owners’ corporations and incorporated associations are at law ‘persons’, and now that persons may marry—it would be “unfair” (note that I’ve used imprecision quotation marks around the word as Tobin does) to disallow people from marrying companies and companies from marrying each other.

Finally, using Tobin’s own line of argument, it would be “unfair” to deny infants and those with Alzheimer’s being married off for the alleged “benefit” (those quotation marks again) that everyone else is enjoying, so we must as an unavoidable consequence of the first step of allowing same-sex marriage, allow arranged marriages for babies and those with advanced dementia.

By now it’s easy to spot two terminal flaws in Tobin’s argument.

Firstly, the use of just one criterion (“fairness”—which she leaves imprecisely undefined) as the sole basis for decision making about this legislative reform is indefensible. What about other critical factors such as well-informed, rational, decisional capacity, judging and weighing what a “benefit” is, in the face of intolerable and unrelievable suffering, consistent with one’s own values and beliefs, who may decide, and the right not to participate?

Secondly, any slippery slope’s purported summit (from which changes are argued only to slip downwards) is deeply rooted in the normativity of the present. We are used to marriage being between a man and a woman. In our relative comfort we accept it as ‘normal,’ ‘good’ and the ‘right thing’.

In decision-making scholarship this normativity is known as “anchoring”. Like an anchor around which a boat will swing according to the wind and tide, we take the pivot point (the anchor of the now), as the natural starting point for future decisions, comparing changes only to the present state of affairs.

But it isn’t a valid anchor, and assuming that it is seriously biases our thinking. We need cast our anchor back just one mooring from the current point to see how the anchor tints our decision-making spectacles:

We can’t allow a man and a woman to marry, because then it would be unfair to not allow two men to marry, or two women to marry, and then…”

Clearly, it is imperative that we outlaw marriage altogether.

The upshot of this slippery slope, when followed properly to its own logical conclusions, is that we must deny all rights because we can confect a slippery slope into a hypothetical moral abyss for any right.

B: It’s OK if you don’t mean it

Tobin further argues that relieving distressing symptoms “is good palliative care, even when that relief happens to hasten death.”

She doesn’t name it explicitly, but this is the doctrine of double effect, an argument first crafted in the thirteenth century by Catholic priest Thomas Aquinas. The doctrine suggests that a bad consequence of an action is justifiable if the agent did not intend the bad effect, if the intended good effect outweighs the bad effect, and if the agent applies diligence in attempting to minimise the bad effect. Notice that the doctrine speaks directly about the intentions of the agent and is silent on the views of the person upon whom the agent might act.

Tobin rails against a doctor intentionally administering a lethal dose to a patient (regardless of whether it is the dying patient’s most fervent wish) and slams the expressions “dying with dignity” and “aid in dying” as “fudges”.

Yet the doctrine of double effect, for which she argues in support, is itself a fudge because it says:

It’s OK to for a doctor to decide to and actually kill their patient (after all, they hastened the patient’s death), as long as they don’t mean to, and they mean well.”

What kind of standard is the secret stuff that goes on inside a doctor’s head without reference of any kind to the patient’s own views and desires, when compared to a fully informed, documented and tested request from the patient?

It’s no wonder that many scholars (as do I) consider the doctrine of double effect problematic.

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Bernadette Tobin is the Director of the Plunkett Centre for Ethics, a joint initiative of St Vincent’s Hospital, Sydney, and Australian Catholic University (ACU). According to ACU, a core mission of the Centre is to “bring a Catholic perspective to all its endeavours”.2

It’s unsurprising then that I detected neither broad thrust nor any detail of Tobin’s ABC opinion piece that deviated from the views of the Vatican. So be it.

There are many points on which Tobin and I agree, such as the potential benefits of palliative care for the dying. I argue, though, that basic scrutiny of the proffered 'principles' reveal them as deeply flawed and unpersuasive.

 

References

1  Tobin, B 2015, Voluntary euthanasia: It can only be a way station to the non-voluntary, ABC Religion and Ethics, viewed 14 Nov 2015, <http://www.abc.net.au/religion/articles/2015/11/13/4351675.htm>.

2  Australian Catholic University 2015, About the Plunkett Centre for Ethics, viewed 14 Nov 2015, <https://www.acu.edu.au/about-acu/institutes-academies-and-centres/plunkett-centre-for-ethics/about-the-centre>.


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