The Clear Line

-- By ShefaliSingh - 16 Feb 2012

"Distinguishing Omission from Acts"

My Criminal Law class was recently assigned to read a series of cases in our casebook under the heading “Distinguishing Omissions from Acts.” The section focuses on the ‘difference’ between letting a person die and killing a person, specifically in the context of people receiving life-sustaining treatment. The main case of the section is Barber v. Superior Court, which concerns two physicians who were charged with murder and conspiracy to commit murder after they terminated life supporting measures being administered to a deeply comatose patient (with the approval of the patient’s family). In order to distinguish the act of ‘pulling the plug’ from unlawful killing, the California District Court of Appeal asserted, “the cessation of “heroic” life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 1016 (Ct. App. 1983). This was so, the court reasoned, because disconnecting the life support devices was analogous to refraining from giving the patient the life sustaining treatment.

The Supreme Court used comparable reasoning when it considered if a New York assisted-suicide ban was unconstitutional in Vacco v. Quill. Respondents argued that because New York allowed people to refuse life-sustaining treatment, but did not permit physician-assisted suicide, the assisted-suicide ban violated the Fourteenth Amendment’s Equal Protection Clause. They further asserted that the prescription of lethal medication to “mentally competent, terminally ill patients” who are suffering great pain and wish to end their lives would be consistent with medical practice standards. However, the ban prevented physicians from doing so. According to the Court, New York’s prohibition on assisted suicide was not unconstitutional because “[everyone], regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause.” Vacco v. Quill, 521 U.S. 793, 800 (1997). The Court then acknowledged that the Court of Appeals had concluded that people on life-support are in fact treated differently from those who are not, because they have the choice to end their life by stopping their treatment, while others do not have the choice to end their lives through assisted suicide. But, the Supreme Court contended, there is a widely recognized “logical” and “rational” difference between terminating life-sustaining treatment and assisted suicide, which is based on the “legal principles” of causation and intent. For,

“when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. . . . A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the patient be made dead.”. . . Similarly, a patient who commits suicide with a doctor's aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not.” Vacco, 521 U.S. at 801-02.

This supposedly is the clear line between “letting die” and “killing.”

A Functional Approach

The superficial attempts to differentiate assisted suicide and the act of ‘pulling the plug’ are examples of Cohen’s transcendental nonsense. How is the intent of a doctor to ease the passing of his patient so significantly different in these situations to justify labeling one action murder, and the other an acceptable act? How is there an omission of action by ‘pulling the plug,’ removing feeding tubes or turning off a respirator? Why does it really matter if it is labeled an omission of action? What makes a fatal disease a better causation of death rather than lethal injection, especially when the latter can cause less suffering? Even if material differences between the two acts actually existed, under a functionalist approach, they would not matter. If the definitions of the concepts of (1) the administration of lethal medication to mentally competent, terminally ill patients, and (2) the termination of life supporting treatment, were tied to real word facts and results, there would be little significant difference between the two. However, “in every field of law we should find the same habit of ignoring practical questions of value or of positive fact and taking refuge in “legal problems” which can always be answered by manipulating legal concepts in certain approved ways” (Cohen, 80).

Helping People Ignore the Truth

Since reading Cohen’s article, I have noticed transcendental nonsense in many of the cases I read. I question why the courts cannot take a more functionalist approach in their analyses, and why they do not define legal concepts in terms of what they actually do instead of the result the court wishes to attain. I also become frustrated with unsupported holdings such as, “Logic and contemporary practice support New York's judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently.” Vacco v. Quill, 521 U.S. at 808. Instead of enlightening people, courts use transcendental nonsense to help people ignores truths they do not want to face (such as assisted suicide and the ending of life sustaining treatment are the same), either because of discomfort, confusion or laziness.

We did briefly discuss several of these ideas in regards to Barber in the classroom. But instead of recognizing the farce of the courts and confronting the issue, the conversation mainly consisted of “Is this distinction ridiculous? Probably. Now let’s move on to the next topic.”

It might have helped at that point in the conversation if someone had pointed out that this distinction was the one resorted to by the medieval Catholic Church: the so-called "doctrine of double effect" first articulated by Thomas Aquinas to justify homicide in self-defense—as it happens—and subsequently developed by the Church as the central approach to issues involving end-of-life care. That it is permissible to bring about as a side-effect of intentional conduct outcomes it would be morally unacceptable to bring about intentionally no doubt seems an impossibly fine moral distinction to you. Sikhism is a very much more morally straightforward system of thought than Roman Catholicism. At the bottom of the cases you discuss—but not apparently at the bottom of the discussion that occurred in your course—is a cultural and intellectual history of some interest. Understanding it explains phenomena large and small: why thousands of people die every year in the US in unnecessary torment, and how some of the most wrenching decisions in a human life are made.

Your way of reaching this point is analytically sharp and clearly expressed. In that sense, this is a very successful draft. But in the end, all you have been able to do is to show an idea is wrong. What you didn't get at first teaching were the tools to do more with the idea: to show where, right or wrong, it leads.