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Legislating Privilege

Published online by Cambridge University Press:  01 January 2021

Marc S. Spindelman
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Extract

Serious concerns about pervasive, persistent, and unjustified social inequalities have prompted a small—but growing—number of academic commentators to raise some hard and troubling questions for those who would like to legalize physician-assisted suicide. In various ways, these commentators have asked: In light of existing social inequalities—inequalities that operate, for example, along sometimes intersecting lines of race, class, age, sex (including sexual orientation), and disability—how persuasive are autonomy-based arguments in favor of legalization of assisted suicide when those arguments depend (as they typically do) on a conception of autonomy that either presupposes social equality or does not expressly account for its absence? How compelling are arguments that we ought to legalize assisted suicide out of feelings of mercy for the sick and dying, when such affective expressions may actually be the socially acceptable manifestation of private ambivalence that includes merciless discrimination?

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Article
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Journal of Law, Medicine & Ethics , Volume 30 , Issue 1 , Spring 2002 , pp. 24 - 33
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Copyright © American Society of Law, Medicine and Ethics 2002

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References

Judge Stephen Reinhardt, for example, chooses to ridicule rather than fully engage the equality concerns with legalization of assisted suicide in his en banc opinion in Compassion in Dying v. Washington. Judge Reinhardt characterizes them (or perhaps more exactly, some of them) as “disingenuous,” “fallacious,” “meretricious,” “discredited,” and “ludicrous on [their] face.” Compassion in Dying v. Washington, 79 F.3d 790, 825 (9th Cir. 1996) (en banc), rev'd sub nom. Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258 (1997). For thoughts on such heated judicial remarks, see Spindelman, M.S., “Reorienting Bowers v. Hardwick,” North Carolina Law Review, 79 (2001): 359–491, at 392-93 & nn.103-104. For an argument that can be described not inaccurately as “dismissing” the sex equality concerns with legalizing the practice, at least to the extent that it suggests such concerns may cut the other way, see Parks, J.A., “Why Gender Matters to the Euthanasia Debate,” Hastings Center Report, 30, no. 1 (2000): 30-36. For a related discussion, see Kamisar, Y., “Physician-Assisted Suicide: The Problem Presented by the Compelling, Heartwrenching Case,” Journal of Criminal Law and Criminology, 88 (1998), 1121-46, at 1127-33.Google Scholar
Literally dozens and dozens of articles have appeared in the last several years — years in which the equality-based arguments against legalization of assisted suicide were simply too widely known to have been “missed” — that do not mention the equality arguments at all.Google Scholar
Lindsay, R.A., “Should We Impose Quotas? Evaluating the “Disparate Impact” Argument Against Legalization of Assisted Suicide,” Journal of Law, Medicine & Ethics, 30, no. 1 (2002):6–16.CrossRefGoogle Scholar
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Id. (emphasis added) (footnote omitted).Google Scholar
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Id. I previously suggested this distinction to Lindsay. Though I think it helps roughly to capture a difference between two equality-based arguments that Lindsay deals with, I remain wary of the way the distinction potentially collects and compresses a complex and developing set of analyses under the sign of “differential influence arguments.”.Google Scholar
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Lindsay recognizes that a number of equality-minded critics of legalization of assisted suicide have developed such “differential influence” arguments, and shows he is well aware of those arguments. See, e.g., Lindsay, , supra note 3, at 11–13. But this only underscores how important it is for the success of his project to provide an interpretive argument justifying his belief that differential influence claims do not ground proportionality claims. Had Lindsay produced such an interpretive argument, he might not have needed to “[a]dmit[],” id. at 13, that “many advocates of the disparate impact argument do not consider equalization of pressured choices across groups the point of using disparate impact analysis.” Id. at 13. See also infra note 41 (wondering whether anyone does). It might also have helped to clarify other interpretive moves he makes without providing reasoned interpretive arguments for them. At one point, for example, Lindsay seems to suggest that some equality-based arguments against legalizing assisted suicide seek only to “rais[e] the standard of medical care to such a high level that scarcely anyone from any group would be in danger of being pressured into assisted suicide.” Id. at 13. See also id. at 7 (“[I]f our underlying concern is the lack of equal access to effective medical care (and this appears to be the concern of many advocates of the disparate impact argument against assisted suicide), then it is unclear how prohibiting assisted suicide will get us any closer to the goal of effective medical care for all.”). But do they? Or are they pressing, more broadly, for social equality, including equality of medical care? See id. at 13-14. To put the point somewhat differently: What would “raising the standard of medical care to such a high level that scarcely anyone from any group would be in danger of being pressured into assisted suicide” actually or effectively require in terms of equality outside of the medical context (however that is defined)? Could we enable individuals to make choices in the medical context that are not constrained by social inequality without also making equality a meaningful social reality in the rest of the social world? If not, does Lindsay give adequate credit to those whose arguments he describes as offering an “‘affordable and accessible health care for all’ version of the disparate impact argument”? Id. at 13.Google Scholar
The same holds true for the sources he cites in his footnotes, see, e.g., id. at 14–15 nn.2–6, and his proposal that the concern of the “proponents of this [disparate impact] argument is that abuses in [a regime of legalized] assisted suicide will disproportionately affect especially vulnerable populations.” Id. at 11. According to Lindsay, this argument can be understood to advocate the “equalization of the risk of an improperly hastened death among our nation's various racial, ethnic, and other groups[.]” Id. “[A]cceptance of that goal,” he writes, “implies that pressure to ‘choose’ assisted suicide is acceptable as long as, for example, white males are coerced as often as black females.” Id. “[W]ould it make a difference in our conclusion,” he later asks, “if somehow we were able to ensure that no more than half of those pressured to choose assisted suicide were women?” Id. “Intuitively, these propositions seem morally dubious,” he continues, adding: “and, in any event, nowhere in the literature can we find any reasoned argument in support of such propositions.” Id. Lindsay does not discuss the possibility that the reason he can find no “reasoned argument” to this effect in the literature is that no equality argument in favor of equalizing abuse exists. Indeed, so far as I am aware it does not — except in what Lindsay writes. To assess Lindsay's suggestion to the contrary, then, we need some interpretive analysis of the texts where he implies that he finds this argument being made. But he gives us none. Not even a single citation to a source he reads as advancing such a claim.Google ScholarGoogle Scholar
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Lindsay, , supra note 3, at 12 (footnotes omitted). Why, one might wonder, is “solely” the standard? It would be enough to show that Lindsay has “misread” (his word) the sources on which he relies if the concern with numbers he sees is motivated by a deeper concern with “differential influence.” See Id. at 12.Google Scholar
See, e.g., Wolf, S.M., “Physician-Assisted Suicide, Abortion, and Treatment Refusal,” in Weir, R.F., ed., Physician-Assisted Suicide (Bloomington, Indiana: Indiana University Press, 1997): 167–201, at 167, 168, 179. See also, generally, Wolf, S.M., “Gender, Feminism, and Death,” in Wolf, S.M., ed., Feminism and Bioethics: Beyond Reproduction (New York: Oxford University Press, 1996), 282-317, at 283.Google Scholar
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Id. (emphasis added). See also, e.g., id. at 168 (“These facts raise the question of whether women would more often seek assistance or do so for different reasons and would die in greater numbers than men if assisted suicide were legitimated.”) (emphasis added).Google Scholar
In this sense, one might say that the “disparate impact” arguments under Title VII that Lindsay deals with could, and maybe should, be cited exactly in support of the equality-based opposition to legalized assisted suicide, even if nobody has yet prominently claimed they should be. See, e.g., Coleman, , supra note 36, at 19 (“No one ever claimed that it did.”).Google Scholar
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Id. See also supra note 27. Unfairly, I think, Lindsay takes aim at Susan Wolf's observation that: “The demand for assisted suicide is a demand for a third party's involvement in purposefully ending a woman's life. That is something women already have in abundance and most people decry. Women are differentially the victims of fatal domestic violence.” Lindsay, , supra note 3, at 11 (footnote omitted). After quoting this language, Lindsay writes: “Thus, Wolf implies that, for her, assisted suicide is morally equivalent to a husband murdering his wife.” Id. This does not follow, certainly not the way Lindsay presumes. Wolf's point in making this comparison, I take it, is that sexual violence, including sexualized murder, is sexual violence, no matter that the victim can be said to have “asked for it,” or that it is perpetuated by a spouse or partner or a physician. Neither the sex nor the social role of the perpetrator of such violence renders it not sexualized or sex-based. Recognizing this may help give women, to quote Wolf herself, “the freedom [they need] to fend off unwanted invasions of all sorts, sexual, violent, and medical.” Wolf, , “Physician-Assisted Suicide, Abortion, and Treatment Refusal,” supra note 44, at 177. See also Wolf, , “Gender, Feminism, and Death,” supra note 44, at 292-94, for further discussion of this point. See also infra text accompanying note 55. Nothing Wolf writes here, or at least nothing Lindsay gives us, justifies his interpretation of Wolf's point. Indeed, given Wolf's equality-based arguments against assisted suicide, which do not entirely foreclose the possibility of legalizing the practice at some point down the road (see, e.g., Wolf, , “Gender, Feminism, and Death,” supra note 44, at 306-08), it is “tendentious” for Lindsay to say: “given her view of its morality, Wolf's extended consideration of the sociological impact of assisted suicide becomes extraneous.” Lindsay, , supra note 3, at 11. Likewise his command that “Wolf should just assert that assisted suicide is as morally as objectionable as murder and be done with it.” Id.Google Scholar
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Spindelman, M.S., “Some Initial Thoughts on Sexuality and Gay Men with AIDS in Relation to Physician-Assisted Suicide,” Georgetown Journal of Gender and the Law 2 (2000): 91–105, at 102 (“[L]esbians and gay men may be afforded a right to an autonomous death because dominant cultural norms suggest that death is what they do or should desire.”).Google Scholar
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See, e.g., Lindsay, , supra note 3, at 7, 12, 13–14.Google Scholar
Perhaps more troubling still is the suggestion Lindsay seems to make that “any disparate impact [following from legalization] is [or would be] the unfortunate, but necessary price that must be paid for respecting a critical autonomy interest.” Id. at 10.Google Scholar
Cf. Schneider, C.E., The Practice of Autonomy: Patients, Doctors, and Medical Decisions (New York: Oxford University Press, 1998), at 149–50; Walker, R., “Two Concepts of Autonomy” (draft manuscript on file with author) (arguing for rationality within the concept of “autonomy”).Google Scholar
See Spindelman, , supra note 55, at 102.Google Scholar
Honestly, , I cannot say with any certainty whether he does or would. Compare Lindsay, supra note 3, at 9 (“I am making what I hope is the uncontroversial assumption that discrimination based on categories such as race and sex is morally unjustified.”), with id. at 10 (“[T]he impact of a practice on protected groups must be balanced against competing concerns.”), and id. (According to equality objections to legalized assisted suicide, “one could not argue that even if proportionately more women, blacks, disabled persons, and other protected groups are manipulated or pressured into choosing assisted suicide, this imbalance can be justified by the importance of providing to those who want (and arguably need) assistance in dying the option of assisted suicide. In other words, one could not argue that any disparate impact is the unfortunate, but necessary price that must be paid for respecting a critical autonomy interest.”).Google Scholar
If Lindsay is correct, for instance, in claiming that health-care inequalities do “not entail that we must hold the autonomy of middle-class white males … hostage to these unfortunate inequities,” why stop there? Lindsay, , supra note 3, at 14. What is special about health-care inequalities? See supra note 40. He does not say. He does, of course, include “poor, disabled, black women” in the formulation of his idea, which thus might also be read also to say: Health-care inequalities do “not entail that we must hold the autonomy of … poor, disabled, black women … hostage to these unfortunate inequities.” Lindsay, , supra note 3, at 14. What does not seem to register in this analysis, though, is that talking about autonomy this way is an empty formality, impervious to substantive inequality. Are we, for instance, to believe that “middle class white males” and “poor, disabled, black women,” though treated as formally equal, and surely normatively are, are equally free to escape (or not to be held “hostage to”) the unfortunate, but material inequalities that exist in our own society and institutions? Are we to believe that they would be free to do so if only we legalized assisted suicide, notwithstanding existing social inequalities? Cf. Kamisar, Y., “Against Assisted Suicide — Even a Very Limited Form,” University of Detroit Mercy Law Review, 72 (1995): 735–69, at 739 n.17.Google Scholar
See Coleman, , supra note 36, at 21. In order to avoid any unnecessary confusion or misunderstanding about the point I am making in the text, I wish to underscore that what I mean to say here is this: “Autonomy talk” within bioethics, including Lindsay's text, often suppresses or elides, sometimes both, the ways in which equality and autonomy interact; thinking about the problems of Tuskegee solely in autonomy-based terms, as is often done, leaves out huge parts of what the moral wrongs committed there were (and are).Google Scholar
Lindsay, , supra note 3, at 12.Google Scholar
Id. at 7 (emphasis removed).Google Scholar
Id. at 12.Google Scholar
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Thanks to my colleague Sharon Davies for helping me to see this point more clearly.Google Scholar
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In a footnote, Lindsay simply asserts, without more, that the data from the Oregon experiment “indicate that at least as far as race and sex are concerned there is (as yet) no correlation between death through assisted suicide (or euthanasia) and being a member of a vulnerable group.” Id. at 15 n.8. If by this he means that women and blacks are not overrepresented among those who have committed assisted suicide under Oregon's assisted suicide law, he may or may not be correct. For now, I take no position on that matter. But cf. Spindelman, M., “The Year of Assisting Death: Report on Oregon's Assisted-Suicide Law Paints Too Rosy a Picture,” Legal Times, Mar. 1, 1999, at 22. He does seem to suggest, however, without necessarily meaning to do so, that the Oregon law may be operating through the prism of privilege when he writes that, “[i]n fact, the empirical information can be interpreted as suggesting a different type of problem, namely that requests for assistance in dying made by women are less likely to be heeded than those made by men.” Lindsay, , supra note 3, at 15 n.8.Google Scholar
Cf, e.g., id. at 14 (“[I]t may be premature to conclude that disparate impact analysis can never be relevant in the debate over legalized assisted suicide. It is possible, for example, that the argument could be strengthened by a compelling case for the premise that in the context of assisted suicide the difficulty of the choice for some does mandate elimination of the choice for all”). See also, e.g., id. at 10 (seeming to imply that “even if proportionately more women, blacks, disabled persons, and other protected groups are manipulated or pressured into choosing assisted suicide, this imbalance can be justified by the importance of providing to those who want (and arguably need) assistance in dying the option of assisted suicide”); id. (similarly seeming to propose that “any disparate impact is the unfortunate, but necessary price that must be paid for respecting a critical autonomy interest”); id. at 14 (discussing incorporation of equality concerns into evaluation of assisted suicide law post-legalization).Google Scholar
See supra note 69.Google Scholar
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This is part of the point that commentators make when discussing what Lindsay calls the “affordable and accessible health care for all” version of the disparate impact argument. See Lindsay, supra note 3, at 13–14. But this “version” of the disparate impact argument may be — and in some number of cases, surely is — part of a much larger social equality project. See supra note 40.Google Scholar