Category Archives: Personal Autonomy

Startlingly Pertinent

Last night was the first debate in a Presidential campaign that–whatever else you might say about it–offers a stark contrast between a governing philosophy and a will to power.

This semester, I am teaching a course that I “invented” a few years back, titled “Individual Rights and the Common Good.” Students begin by reading political philosophers–Aristotle, Locke, Mill, Rawls–and observers like De Tocqueville, before considering present-day issues. The question we examine is, essentially, government legitimacy: when does government’s obligation to protect the common good justify constraining the liberties of the individual?

In preparation for our class on Mill, I reread the Introduction to “On Liberty.” It had been some time since I’d read it, and I was struck with how relevant it remains.

Mill begins by noting the age-old struggle between Authority and Liberty, and he traces the evolution of “authority” from a “governing tribe or caste” deriving its authority from “inheritance or conquest” to “tenants or delegates” of the people, and “revocable at their pleasure.” He writes that constraints on the first category were seen as necessary to protect those subject to the whims of the rulers; he then says

By degrees, this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself.

As he proceeds to point out, however, this is fanciful:

It was now perceived that such phrases as “self-government,” and “the power of the people over themselves,” do not express the true state of the case. The “people” who exercise the power, are not always the same people with those over whom it is exercised, and the “self-government” spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

Mill points out that the tyranny of the majority is exercised not just through the law, but through “prevailing opinion and feeling” (something I rather suspect a certain kneeling football player has recently experienced). He then sets out the dilemma which forms the focus of my class:

There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit — how to make the fitting adjustment between individual independence and social control — is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says a second nature, but is continually mistaken for the first.

Some rules of conduct must be imposed. True. And arguments over the nature of those rules and the justifications for them will probably continue for as long as “we the people” continue.

Recognizing Reality

The Supreme Court has finally stepped in to say “enough” to the oh-so-clever politicians trying to mask their disdain for women’s autonomy by pretending a concern for women’s health.

The Texas law that triggered the lawsuit was one of a number of similar efforts to cloak anti-choice measures in excessive and onerous “medical” regulations. It required doctors performing abortions to have admitting privileges at nearby hospitals, and imposed a number of physical requirements on clinics, making them meet the standards of ambulatory surgical centers.

Although Texas argued that the measures were aimed at protecting women’s health, Rick Perry was among the political figures who were more forthright about the law’s actual motive, describing it as one step toward an “ideal world” in which there would be no abortion.

Motive aside, as Justice Breyer wrote for the majority, neither of the provisions imposed by Texas “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Justice Ginsberg was more blunt, noting that “It is beyond rational belief” that those provisions actually protected women’s health.

As numerous medical experts have pointed out, abortion is one of the safest of medical procedures. (Colonoscopies and tonsillectomies are riskier, but political figures expressing concern about those operations are non-existent.)

What participants in the ongoing battles over reproductive choice, same-sex marriage, and other “culture war” issues that roil American public debate miss is the actual legal question at the heart of these conflicts. The issue is not whether a woman should terminate a pregnancy or carry it to term; the question is: who should decide what she should do?

Too many Americans fail to understand the purpose of the Bill of Rights, which was to protect individual autonomy—a person’s right to self-government—against government infringement. The Bill of Rights, as I tell my students, is a list of things that government is prohibited from doing. Government cannot tell you what to say, or what to believe, no matter how ugly your speech or deluded your belief. Government cannot tell you whether or how to pray, who to marry, how many children to have, or what career to follow.

Government can’t do these things even if a majority of its citizens wants it to. Just as your neighbors cannot vote to make you an Episcopalian or a Baptist, popular majorities cannot use government to restrict the individual liberties protected by the Bill of Rights.

In short, government cannot tell you how to live your life—how to make what the Court has called your most “intimate decisions.” The rest of us don’t have to agree with the decisions you make, but you get to make them.

The Texas law was one of several transparent efforts by lawmakers trying to do an “end run” around a woman’s right to make decisions with which they disagree.

Fortunately, the Court saw through the dishonesty of that effort.







Killing for Life…

Well, evidently, failed Presidential contender Ted Cruz had a “pro life” adviser who wants to execute abortion providers. (“Pro life” folks like these always remind me of that Cold War-era Second City skit: “Kill a Commie for Christ.”)

Abortion is a very thorny issue. Unlike so much of the culture war agenda, there is a genuine argument to be made by those who see abortion as equivalent to murder. They tend to start from very different premises than those of us who defend a woman’s right to control her own autonomy–they see a human being from the moment of conception, and believe that the interests of that potential human should be given priority over the rights of the woman who is carrying it.

Pro-choice defenders have many responses to that viewpoint, both moral and practical, but we can–and mostly do– respect the legitimacy of that perspective, and the sincerity of many people who hold it.

Unfortunately for the conduct of the “abortion wars,” however, the loudest voices claiming the “pro-life” label are anything but legitimately pro-life. Their ranks are filled with fundamentalist culture warriors fanatically opposed both to women’s autonomy and to our equality. Their concern for “life” rather pointedly excludes the life of the woman, and it extends to the fetus only until it is born. These are the dishonest “filmmakers” who doctor surreptitious videos, the “pro life” legislators unwilling to spend money to feed or house or properly educate poor children once they are born, the opponents of birth control…Well, you all know the drill.

But the worst of the worst are the men (and they’re almost always men) who advocate killing in the service of “life.” The men who murder abortion doctors, the political opportunists who argue that women should carry their rapist’s baby to term, the un-self-aware pontificators who advocate prison or even execution for those who help desperate women avoid back-alley abortions.

Let’s get real.

As my friends in Planned Parenthood point out, women didn’t start getting abortions after Roe v. Wade. They just stopped dying from them. But theirs are clearly not the lives that matter to the sanctimonious “pro life” culture warriors like Cruz and his “advisor.”

There’s a reason that so many observers considered Ted Cruz even more dangerous than Donald Trump. Although–as Lindsay Graham memorably put it–choosing between the two of them would be like choosing between death by gun or by poison….


Right to Die

Those of us who listen to public radio are familiar with Diane Rehm, the raspy-voiced hostess of a respected public affairs program. Recently–in the wake of her husband’s terminal illness–Rehm has become a spokesperson for an individual’s right to decide how and when he will die.

Rehm said she decided to write the book because she was frustrated by the way her husband died.

“People need to talk about this issue,” she said. “Doctors need to be taught about this issue. The whole idea of doctors being taught about helping to keep people alive, but not being taught how to listen to those who are ready to die — that seems to me sad and misguided.”

One doctor who has come to agree with Rehm is my cousin, Morton Tavel, a cardiologist whom I often quote on this blog. He recently analyzed the issue thusly:

As a physician, I originally supported the dictum that death should be prevented at all costs. But more recently, I have come to realize that perhaps we should also consider suffering as well as dying.

These thoughts have directed my attention to the so-called “aid in dying” laws that are in force in the U.S. states of Oregon, Washington, Montana, Vermont, and California. They are sometimes referred to as “Physician-Assisted Suicide”. These examples often require that a patient’s death be expected within six months, and they compassionately offer a voluntary, self administered end to suffering at an individual’s own preferred time. Since 2014, aid-in-dying bills have been introduced in Washington, D.C. and several states. Canada is also considering such a bill. Other countries, including Switzerland and Belgium, allow aid in dying for people who are not even terminally ill. All these laws provide freedom for a physician to prescribe a lethal drug to a patient for self administration. At present, such a practice is unlawful in 46 states, including Indiana..

In the example of Oregon, which has had such a law in effect since 1997, subsequent study has uncovered no abuses, and, interestingly, about a third of patients who receive medication to end their lives never actually use it, meaning that many are likely reassured by the simple knowledge that they will be able to end their lives at any time of their choosing.

What people want, often, is knowledge that they can control their own lives and deaths.

Tavel recognizes the potential for abuse, and the need to ensure that people do not terminate their lives because they are depressed, or in pain that could be alleviated with proper medical intervention, but he insists that such issues can be addressed.

Laws addressing such issues should be clearly defined. First, I believe a specific time for life expectancy need not be spelled out, for misery without hope doesn’t necessarily conform to a distinct number of days or months. For instance, someone suffering from a severe progressive neurologic disease such as Lou Gehrig’s disease (ALS) can continue suffering for many months prior to death. On a personal level, I witnessed the suffering and death of a patient/friend of mine from a similar neurologic disorder called progressive supranuclear palsy (PSP), a disease that claimed the life of actor Dudley Moore, which is an uncommon progressive fatal brain disorder that affects movement, control of walking (gait), balance, speech, and many others.Given the choice, and if it were legal, he would have gladly opted to end his life by assisted suicide. Even various terminal cancers can behave for variable durations, but also cause prolonged pain and suffering.

In Oregon, for example,the attending physician and a consulting physician have to confirm the patient’s diagnosis and prognosis and determine whether the patient is capable of making and communicating health care decisions for him/herself. If either physician believes the patient’s judgment is impaired by a psychiatric or psychological disorder (such as depression), the patient must be referred for a psychological examination.

If this and the other safeguards of the Oregon law are satisfied, the prescription may be written.

In most cases, the drug used for this purpose belongs to a group of so-called “barbiturates”, commonly used in lower doses for the induction of normal sleep. In large doses, however, death is painless, peaceful, and will occur within a matter of minutes to hours.

A death in this fashion is usually far better than other, less desirable, alternatives. Thus I might conclude with a simple question: Isn’t it more humane to deal with one’s own species in a manner at least as appropriate as the smooth and painless exit we provide to our beloved animal pets?

What is the justification for over-riding individual autonomy, and insisting that a terminally-ill person suffer?

Your Religion, My Body–Happy Mother’s Day

It’s Mother’s Day–an appropriate time to think about human reproduction.

So…let me suggest a science fiction scenario.

We’re 25 years into the future. In reaction to massive population growth, NoNo, a religion encouraging ritual sterilization, has become the majority religion  in the U.S.  Practitioners believe (sincerely and devoutly) that God wants humans to avoid reproduction. (This religion’s conception of Diety is noncommittal on sex–it’s just making babies She is discouraging.)

As this religious community has grown, it has come to control the majority of the nation’s hospitals; well over 60% of them have become part of a national network of medical facilities run by and faithful to NoNo principles.

Our protagonist is not a NoNo, but she lives in a small town with only one hospital, and it is part of the NoNo network. She suddenly becomes ill. She is taken to the hospital in her area, where she is diagnosed with a treatable condition that will require minor surgery–and she’s told that, according to the tenets of NoNo, she will also be sterilized during the procedure. She objects–she’s only twenty, has never had children and desperately wants to be a mother–but her objections are deemed irrelevant. She is deprived of her control over her own body and any chance of having biological children.

Far fetched? Not if you switch the text.

The California Medical Association is seeking to join the ACLU of Northern California in its lawsuit against a Catholic hospital system over one of its facilities’ refusal on religious grounds to allow a doctor to perform a tubal ligation after a planned Cesarean section….

The suit stems from a case at Mercy Medical Center in Redding, one of Dignity Health’s 29 hospitals across the state. Mercy Medical says its refusal to perform the procedure was based on the Ethical and Religious Directives for Catholic Health Care Services, written by the U.S. Conference of Catholic Bishops. The Directives – followed by all of California’s 35 Catholic hospitals – prohibit birth control, abortion and, in most cases, sterilization.

The California Medical Association says hospitals should make decisions that are medically appropriate–and should not make medical decisions that are contrary to best practices for reasons of religious dogma, especially when the patient does not accept that dogma.

Civil libertarians–in this case, the ACLU–say individuals should not have to cede control over their bodies and beliefs in order to receive medical care.

Over the past quarter-century or so, Catholic hospitals have assumed control of a significant percentage of the nation’s hospitals. What the courts need to decide is whether the merger of these hospitals entitles the Church to dictate medical decisions that would at best be considered “non-standard” or at worse would constitute malpractice.

Because God.

Suddenly, my “science fiction” scenario doesn’t look so far-fetched. As I’ve said before–a government with the power to prohibit abortion (or birth control) is a government with the power to require it. As a friend used to put it, poison gas is a great weapon until the wind shifts.

Unless the courts rule otherwise, hospitals with a monopoly on medical care can impose their own rules. Based upon their religious beliefs. No matter which way medical science’s winds blow.