So let’s kick off this blog with a topic that is not really at the center of my interests. But I have discussed it quite regularly with a friend of mine, Roland Kipke, over lunch and he has succeeded in publishing a paper on it in Bioethics (open access). Since it has provoked a lot of criticisms ahead of and after final publication, leading to several online discussions where Roland himself took actively part in, I want to take the chance and note a few points. I always enjoyed our discussions and I like Roland’s ideas in general and this paper in particular very much. Still, we typically end up with having very different positions on almost everything.
Roland’s basic point in his paper is to say that if you argue for the permissibility of physician-assisted suicide (PAS), you are thereby committed to make commercial assisted suicide (CAS) permissible. The problem, then, is one that many proponents of PAS presumably have: typically they do not favor CAS, although they support PAS. Roland himself is critical of assisted suicide (AS), but in his paper he does not take a stance on this question, but rather examines the argumentative coherence of supporting AS. His strategy consists in (1) showing that CAS has in fact some advantages over PAS (e.g. some of the arguments against PAS cease to exist if AS is accomplished by non-physicians in a business-like manner), and (2) in showing that the arguments against CAS, from the perspective of a proponent of PAS, are either not convincing, or they speak against PAS itself. He concludes that “[t]o reject CAS while endorsing PAS is […] not ethically justifiable: it is not a coherent ethical position. Therefore, the position of the liberal advocates of PAS has to be revised. Either they have to expand their advocacy to include CAS and therefore radicalize their position considerably or they have to revise their rejection of some arguments that are generally raised against assisted suicide. In both cases, it would no longer be the same position” (p. 522). In what follows, I will raise a few points about Roland’s overall strategy and comment on some details of his argument.
Let me note at the beginning that I share Roland’s conclusion. I think that he is right in saying that there are very good argument for CAS and that once you are in favor of the permissibility of AS, you have good reasons to organize its provision through markets. For me, then, the most natural response to Roland’s conclusion is to agree with him and simply allow CAS. There might be several ways to come to this conclusion, even for those who think that the idea of CAS runs counter to some of their firmly held beliefs. One is based on the idea of a reflective equilibrium (RE) as a guide to our moral reasoning. RE tells us that when we try to find normative standpoints on a given question, or more theoretically, when we want to find a theory of X, we should proceed by both reasoning from premises to conclusions (deductively, inductively), and comparing these results with other firmly held beliefs, principles, judgments or intuitions. During that process, we will constantly re-order and revise our theories and other beliefs so as to finally reach a coherent conclusion. Sometimes we revise the argumentative reasoning, at other times we abandon some of our principles or intuitions. In the case of PAS/CAS we might say that whereas our intuitions are against legalizing CAS, in light of Roland’s argument we are forced to abandon our rejection of CAS and finally allow it. This would constitute a major step in the mind of a PAS-proponent-and-CAS-opponent, and it would, to quote Roland, “no longer be the same position”. But this fact alone would not be relevant on the way towards a coherent system of ethics.
However, there is one crucial assumption in Roland’s essay that I want to raise some doubts about. Roland thinks that we need to be coherent when it comes to an ethical position on any given topic (here: assisted suicide). He starts off by assuming that proponents of PAS typically or oftentimes reject CAS, but notes that (1) CAS might even be a better way of organizing AS, and that (2) criticisms raised against CAS do not provide us with good reasons to reject CAS. But in light of the RE as guide to our reasoning we are not determined to immediately bring coherence to our thinking. In the case of AS, for instance, we might well hold on to PAS and continue to reject CAS and be inconsistent. Perhaps we have not found a striking argument yet, but this does not mean that there is none. We might even reject the idea that ethics must be a coherent whole, consisting of mutually compatible norms and judgments. Moreover, perhaps our ethical thinking, our ethical compass, is such that it allows for some level of incoherence. Roland has not given us a reason to assume that we need to be “rational” in the sense of coherent. What he has given us are very good reasons to prefer CAS over PAS. But there is nothing in his paper that should convince us that we absolutely need to be coherent in his sense. He simply assumes that we need to and want to be coherent. But in ethics we often hold diverging and incompatible views, and sometimes we even lack the knowledge of why this is so. But this provides us with reasons to think harder, or to simply accept it, and not necessarily to revise our belief system to make it more coherent. Of course, once we can come up with a justification for why we accept A but reject B, this system will exhibit the feature of being coherent. What I would like to take into doubt is the idea that if we detect an incoherence, we need to revise our beliefs immediately.
As I said, I think it is time to open the markets for such services. But if you oppose to CAS and simultaneously accept PAS, you might want to follow up on the search for arguments against CAS by first attacking Roland’s rejection of arguments against CAS. So, for instance, you might want to take into question his point that opposing to CAS by insisting on negative features of commercialization is wrongheaded. Roland says that those who think that commercialization makes suicide (or AS) more common and normal are using a contested conception of the good (i.e. of what a good society is) as basis for making binding laws, which he rejects. However, this line of argument is itself based on a conceptual confusion. By making this claim one is not arguing for binding laws, but making an ethical judgment (together, of course, with some empirical assumptions). And there is nothing wrong with making ethical judgments based on an idea of the good. The opponent of CAS says that there will be some negative consequences such as the increased availability and even presence of something he or she simply rejects on the basis of what he or she thinks is good or valuable. He or she will then have to go on and show why an increase in the availability of even presence of suicide is a bad thing. But we can be assured that there will be points that the opponent is putting forward when asked. It is a question, of course, how we organize our society given a plurality of values and judgments. But at the point of an ethical search for what is right or good, we need not be concerned with whether the grounds for our rejection is widely shared or not. Back to the overall line of criticism, I want to maintain that whether or not you think CAS should be allowed does indeed and legitimately so depend on your overall evaluation of being at liberty to commit suicide. So the critique who opposes CAS but holds on to PAS might have a point.
Similarly, the opponent of CAS can doubt Roland’s thesis that examples such as having markets in organs are not comparable to CAS. In fact, they are, because in both cases, so the opponent says, there will be an incentive for a person to do something that the opponent thinks is wrong or bad. In the organ-market case, bad actions such as violations of bodies out of market incentives will occur, whereas in the CAS case, the number of suicides will increase, which the opponent thinks are bad actions. So he or she uses some empirical assumptions, together with a value judgment, to argue for his or her negative evaluation of the practice of CAS. This is what both cases, contrary to what Roland thinks, share.
As a side note: Whether or not the opponent of CAS (and proponent of PAS) has a point in rejecting markets because of their tendency (if there is one) to increase the number of suicides depends on whether she is right in holding the increase of suicides to be a bad thing. The opponent as I have pictured her, is a person who thinks that commercialization of AS leads to an increase in suicides, which in turn she evaluates negatively. Should we, on the contrary, have a positive attitude towards people’s liberty to commit suicide, we would not see an increase in suicides as something negative. (This assertion certainly needs some qualifications. For instance, an increase in suicides because of, say, an extremely bad political environment is not something we want to evaluate positively. But for now let me simply assume that the reasons for why people commit suicide are totally legitimate, people decide autonomously etc., so that, given the assumption that suicide is not to be judged as a bad thing, an increase in suicide numbers should not worry us.). When it comes to discussing, then, whether or not there should be markets in AS, we might want to proceed by using the following principle: If an action is ethically permissible, there is nothing wrong with providing it via markets. I will have to say more about this point in some future posts, so let me now merely say that in putting forward this idea I am obviously making use of Jason Brennan and Peter Jaworski’s approach in “Market without limits“.
It is important to note that presumably Roland would not oppose to what I say here. His own view is precisely that we cannot separate the legitimacy of CAS from that of PAS and that it all hinges on our stance towards AS or suicide in general. He would agree with me that when it comes to judging CAS, we need to be clear about whether we want to permit AS in general. Once we are clear, we can judge PAS and CAS equally. My point, however, is merely that there is still room for holding PAS as legitimate but not CAS, even if one rejects AS because of CAS’s tendency to produce more of a bad thing. Thus, we need not be incoherent if we reject CAS but accept PAS.
There is one final point I wish to make. Roland could have made his life much more easier if he had pointed out that those who think that PAS is okay but not CAS are wrongfully comparing two different things as being conceptually distinct, where in reality they have a much closer relation to each other. It is not the case, as Roland’s unreflectively shares with those he criticizes, that there are two separate types of AS, one being PAS, the other being CAS. Rather it is the case that PAS is a special form of CAS. To see this consider that physicians are typically not thought to work for free. Even though we do not pay directly to the doctors when we see them, this does not mean that they are working without getting paid. And once this is seen, the question is not so much whether or not we should allow only physicians to offer suicide services but not other (commercial) agents (which could also be physicians, of course), but rather how we should organize the system once we agree that AS is something perfectly justifiable. Physicians work in a field that is highly regulated, where what they can and cannot do is politically determined and codified. So putting AS in the hands of physicians gives society more control over the things being done, which might at least partly explain why many accept PAS. In a market environment, however, people fear that things go out of control, and that all the bad things that critiques put forward will occur. So they prefer PAS over CAS. Now, should there be something to it, those whom Roland criticizes might indeed have a point without being necessarily incoherent. But my view is that the fears are not necessarily realistic. I cannot here and now defend this satisfactorily, so let me just say that what we want of an AS-industry is consumer protection which critiques think can only be guaranteed if the industry is put in the hands of doctors. Consumer protection, however, does not depend on safety regulation nor on a professional monopoly. As this little video shows, consumer protection can perfectly arise in a free-market environment.
Let me sum up. I think that there are wonderful points in Roland’s essay that speak loudly in favor of the permissibility of CAS. Unfortunately, we have not been provided with a reason to think that we need to be coherent in our ethical reasoning and reject/accept CAS when we reject/accept PAS. I have opened the path for somebody who opposes CAS to defend herself against Roland’s attacks so as to make it more credible to accept PAS and reject CAS. It all depends on whether we generally are in favor of AS. Whether or not there should be commerce in AS services can be, I suggested, answered by using a principle borrowed from Brennan and Jaworski. This principle connects with the idea that CAS can or cannot be problematic, depending on how we judge AS. In any case, the problem of incoherence is not something we need to care about too much. In addition, even if we accept PAS and reject CAS, we are not comparing thereby two things located along the same dimension. What we are referred to by Roland’s argument and the questions he raises, and which I absolutely appreciate, is that we need to examine more thoroughly (1) whether we think people should be at liberty to commit suicide, and (2) if they should be, how we best organize the system of AS.
Andreas Wolkenstein 