We now turn to four disputed areas of medical practice and medical law. For a considerable period in the history of the West, natural law reflections such as those we will provide have guided both medical practice and law, even if at times only implicitly or inchoately and im- perfectly. Of late, by contrast, there is strong and often explicit opposition to the principles, norms, and conclusions we will discuss. This is especially evident where questions at the beginning and end of human life are concerned.
A. Killing at the Beginning and End of Life
Should physicians ever be engaged in the intentional taking of life, whether at its beginning or at its end? Widespread toleration of the practice of abortion suggests an affirmative answer as regards the beginning of life; rapidly increasing toleration of the practice of assisted suicide and voluntary euthanasia suggests a similarly affirmative answer at the end of life. The natural law tradition, by contrast, offers negative answers in both cases.
Natural law thought approaches the question of abortion from a moral, a medical- professional, and a political-legal standpoint. The three-fold approach is necessary; for example, to demonstrate that a practice ought to be prohibited by law, it is not sufficient (though it is usually necessary) to show that the practice is morally impermissible. It is additionally necessary to show that the wrong in question is, or threatens, a serious wrong against persons, and is thus unjust; and that a restrictive, rather than a permissive, legal regime is a more reasonable way to prevent and educate about the wrong. Professional practice also might be more or less concordant with the demands of law and morality. Here, it is necessary to show that the human goods served by the practice will be best served by
7 For further discussion of the concept of vocation and its importance, see G Grisez, The Way of The Lord Jesus, vol 2: Living a Christian Life (Franciscan Press, 1993), 77–130.
considerations that are essentially moral, and not merely legal. Thus, that abortion or euthanasia (or capital punishment) are permitted at law may not be sufficient to show that these practices are compatible with medicine’s vocational commitments.
As regards the moral question of abortion, natural law theory offers the following considerations in defence of the inviolability of human life, that is, for the clam that it is not to be violated, damaged, or destroyed intentionally (whether as an end-in-itself or as a means to some other end).8
What is the nature of the being whose life is ended in abortion? Is it a living human being, or is it some living thing which is not (or not yet) a human being, something perhaps merely in transit towards being human?9 Natural law thinkers urge that the question must be ad- dressed by the most up-to-date science, notably embryology and developmental biology. That science does indicate the nature of the being whose life is ended in abortion: the entity destroyed in abortion is a human being, a living member of the species homo sapiens, genetically and functionally distinct from his or her biological parents, and possessed of the gen- etic and epigenetic primordia necessary to be the agent of its own growth and development to the next stage(s) of human life. Apart from disagreements at the very earliest stages of human life, when the human embryo is capable of twinning, most philosophers and virtu- ally all human embryologists recognize that the early embryo and foetus is an identifiable human being.10
Moreover, even objections concerning the earliest stages of human life are weak; that the very early embryo is capable of dividing into twins (or perhaps budding to generate a second embryo) hardly shows that the embryo which does not twin, or even the embryo that will twin, is not a single unified whole organism. Individual organisms such as single- celled amoebae or multi-celled flatworms can be capable of division without this is any way jeopardizing their organic unity and determinateness. Thus, the possibility of twinning gives us no reason to doubt the unity and determinateness of the embryo.11
The answer to the question on the nature of the being whose life is ended in abortion is this: the unborn entities destroyed in abortion are human beings. Should the norm against intentional damage to a basic good—human life—be considered applicable where unborn human beings are concerned? Unborn human beings are human beings, precisely the class of beings for whom basic human goods are good. There are compelling reasons to protect the good of life and health in and for all human beings, including unborn human beings. So, the norm against intentional damage to a human life is applicable to unborn human beings, too.
Moreover, every attempt to deny basic moral protections to all human beings inevitably relies upon a contingently (and ultimately arbitrarily) drawn boundary between some human beings and others: that these human beings have achieved consciousness, or can now reason, or engage in self-conscious thought, for example, while those cannot. None of these boundaries divides one essential kind of thing from another; but the boundaries dividing what are human beings from what are not do divide entities in a morally non-arbitrary way. What is the source of the inviolability of human persons? Human beings are thought to be worthy of respect, and thus entitled to immunity from intentional killing, enslavement, torture, and the like, because of their intrinsic dignity: because they are persons, possessed of the capacities for freedom and reason. But those capacities are possessed in root, or radical form, by every member of the species, including human beings at the zygotic and foetal stages. Thus, those very young members of the species homo sapiens are also possessed of human dignity, and are persons from the moment of fertilization, and they share with all
other members of the species the grounds for said inviolability.
Is abortion intentional killing? The answer requires some nuance. Most abortion is surely intentional killing: whenever motivated by the desire ‘not to be a mother’, for example, a desire that is satisfied only by the destruction of the entity whose existence makes one a mother. Judith Jarvis Thomson has argued, in effect, that some abortions might only include an intention to expel, which she believes is justified in the absence of a special duty to provide aid.12 Natural law thinkers have argued extensively against Thomson that there are natural obligations, some based in biological–familial relatedness, which mothers owe to their unborn children; and that the choice to expel in the absence of very serious reasons, such as the need to save the mother’s life, is inevitably unfair and thus unjust.13 A reasonable natural law position on abortion would first identify abortion as the intentional or unjust expelling—namely, killing—of an unborn human being; and then conclude that abortion as so defined is always morally impermissible.14
Should medical practice allow the killing of unborn human beings, in spite of the moral impermissibility of such killing? It should not. Any upright practice, and thus any profession established on the basis of an upright practice, is constituted by its orientation to some basic good or goods. Practices are professionalized when there are good reasons to ensure widespread distribution of the benefits of the practice, to ensure that appropriate standards of education and behaviour are transmitted to all practitioners, and to provide the external goods necessary for the practice to flourish. Medical practice is fundamentally guided by a vocational commitment to human life and health; as such, it would be contradictory and disastrous for the profession were its practitioners to include the privation of this good as among their purposes. Abortion as defined above (ie as the intentional or unjust killing of an unborn human being) seems entirely contrary to the appropriate professional ethos of physicians, who are committed to healing, rather than killing. This recognition was crucial to the physicians’ movement of the nineteenth century to eradicate abortion.15
12 JJ Thomson, ‘A Defense of Abortion’ (1971) 1 Philosophy and Public Affairs 47–66.
13 On natural obligations founded on biological relatedness, see M Moschella, To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s Autonomy (Cambridge University Press, 2016); for the argument of unfairness, see P Lee and RP George, ‘The Wrong of Abortion’ in AI Cohen and CH Wellman (eds), Contemporary Debates in Applied Ethics (Blackwell, 2005), 13–26.
14 See C Tollefsen, ‘Double Effect and Two Hard Cases in Medical Ethics’ (2015) 89 American Catholic Philosophical Quarterly 407–20.
15 The history of the nineteenth-century physicians’ crusade against abortion is related in FN Dyer, The Physician’s Crusade against Abortion (Science History Publications, 2005).
Should medical law also hew closely to the moral judgment that abortion is always an offence against an innocent human life? It should; abortion is not only contrary to the good of life, but an offence against that good in particular persons, without—ever—their con- sent. Abortion is thus always unjust, and is concerned with a grave violation of a basic good (ie human life); it is precisely the sort of matter over which legal guidance is necessary. For the law even to remain ‘neutral’ on this matter is for the law to permit attacks on innocent human life. This does not mean that natural lawyers favour criminal sanctions against women who seek or obtain abortions. Recognizing in some cases diminished responsibility, and other mitigating factors, natural lawyers generally recommend that it be illegal for doc- tors or others to perform abortions; criminal or regulatory penalties should thus fall on those who carry out, rather than those who undergo, abortions.16
- Physician-Assisted Suicide and Euthanasia
When we turn to the question of so-called ‘medical assistance in dying,’ the situation is somewhat more complicated. Here, the most plausible proposals to allow, or perhaps re- quire, physicians to aid their patients in ending their lives require that those patients give their informed consent in the form of a request; these proposals also argue that patients be assisted in ending their lives as a way to forestall or end human suffering. So, there are significant differences from the abortion case: unlike in abortion, the one killed, or helped to kill him- or herself, consents; and the killing is done for the benefit of the one killed.
Natural law’s assessment of assistance in self-killing starts from a moral standpoint, and here the judgment is straightforward. If every intentional killing of an innocent live is mor- ally impermissible, then so is self-killing, assisting in self-killing, and killing at the request of another.17 It is true that the natural law tradition has held, going back to Aristotle, that it is impossible for a man to do injustice to himself, or to suffer injustice willingly.18 So, self-killing, or assistance in self-killing, might not be unjust towards the one killed. But not every moral wrong is an injustice, and the moral demands of the natural law prescription against intentional killing go beyond the demands of justice.
Should the medical profession take this moral standard as its own? Where abortion was concerned, the answer seemed straightforward: killing is contrary to the medical profession’s ethos of healing. That judgment may seem complicated here by the presence of consent and suffering; doctors are to honour patient consent; and they are thought by many to have the relief of suffering as among their primary purposes. But proposals for a ‘right’ to physician assistance in dying do not ask physicians to honour consent, but go beyond that in requiring physicians to acquiesce in all patient demands. And suffering, unlike disease or impairment, is in part a function of a patient’s awareness of and response to the deficiencies in her own life and health. While the physician’s task is surely to respond to some of those deficiencies, when possible, it is not clear that the good physician is charged with ending
- patient suffering at all costs, including where the means of achieving that goal is killing the patient or helping the patient to kill himself.
- There are additional reasons for resisting the turn to physician assistance in dying, and some of these considerations will carry over to the discussion of medical law as well. Medical professionals, especially, but not only, those who care for patients at the end of life, are charged with caring for persons who are in a radically dependent and vulnerable state.19 The vulnerability of the patient requires a professional ethos that cultivates trustworthy physicians, and makes possible reasonable trust by patients. It is difficult to see how the necessary trust can be maintained, however, when doctors constitute an exception to the general and indefeasible norm against intentional killing of innocent human beings. Rather than knowing and trusting that a physician will never abandon the patient in her vulnerability, the patient will know that killing (ie the taking of her life in her vulnerability) is always an option. The nature of the doctor–patient relationship will fundamentally change, and medical professionals, in recognizing this, are right to worry about it.20
- The revision to the exception against the intentional killing of an innocent requires great care on the part of the medical profession to produce and enforce protocols that ensure that persons will not be killed against their will, or coerced, even subtly, to end their lives; more- over, these same protocols must ensure that the will of the patient requesting death should not be compromised by depression or other psychological impairment. These are all issues of justice, of what is owed to others, and the introduction of a practice of assisted death into the medical profession threatens pervasive injustice to those who are poor, depressed, or at the mercy of uncharitable (or greedy, or impatient) family members or others if exacting protocols are not developed and then rigorously enforced.21
- Many medical professionals not committed to the inviolability of human life as are natural law theorists nonetheless have recognized the undesirability and perhaps impossibility of the medical profession developing protocols of this sort. They are further concerned that the availability of assisted death will detract from the efforts and resources necessary to care for dying patients. Thus, Ezekiel Emanuel writes:
Instead of attempting to legalize physician-assisted suicide, we should focus our energies on what really matters: improving care for the dying—ensuring that all patients can openly talk with their physicians and families about their wishes and have access to high-quality palliative or hospice care before they suffer needless medical procedures. The appeal of physician-assisted suicide is based on a fantasy.22
There is an additional difficulty. Two main justifications are typically given, as noted above, for a right to assistance in dying: that consent has been given autonomously, and that the patient is suffering. Both justifications, if followed to their logical conclusions, justify far more, however, than a right to assistance in dying for those who are dying. Rather, both autonomy and suffering seem capable of justifying a right to die, and to receive assistance in dying, for many non-terminal patients, who might nevertheless be suffering greatly, and autonomously desire death. Such patients might include those whose suffering is existential or moral (eg an alcoholic who cannot quit the bottle), or whose ‘life narratives’ lead them to desire an entirely controlled resolution to their story at the time of their choosing.23
For all these reasons, medicine should not admit the practice of assisted dying into its practice. But for the same reasons, neither should the law contemplate such. Recall that the common good of political society is the totality of conditions necessary for citizens to pursue upright and flourishing lives, individually, and in community (communities) with one another. Those conditions include, pre-eminently, and a central task of the law is thus establishing and maintaining, just social conditions between citizens. But justice is threatened for the most vulnerable by a regime of assisted death. Moreover, the practice of assisted death threatens to erode the possibilities for upright self-constitution for members of the medical community, by encouraging them to abandon their commitment to heal and never to harm. The general and stringent legal restriction against intentional killing of the innocent should thus not be loosened for doctors treating patients at the end of life.24
B. Double Effect
An objection raised to those who oppose assistance in dying, however, leads to important further issues. How is it possible to refuse a permission on self-killing and assistance in self- killing, yet countenance current medical practice and law as regards refusal or withdrawal of forms of life-sustaining or life-saving treatment? Patients who refuse consent are not treated against their will, and some die as a result of their refusal. Similarly, life-sustaining technologies are withdrawn from some patients at the end of life, with death as the con- sequence. What principled line can be drawn between these practices and the practice of assisted death?
In this section, we address the question of the principled distinction, which hinges on the notion of intention; in the next section, we address the related question of patient autonomy and patient authority.
The natural law tradition is distinguished, among the variety of approaches to ethics, by its claim that there are some acts that are never to be done. Norms concerned with such acts may be called ‘moral absolutes’: they do not mandate a single course of action for all agents in all circumstances; rather, they identify an action type which is never to be engaged in by an agent.25 Such absolutes most typically flow from the general norm identified above: that basic goods are never to be directly (that is, intentionally—as an end or means) damaged or destroyed, whether out of hostility, or for the sake of some further good. That norm makes sense, recall, given the incommensurability of the basic goods and the options for morally significant choosing generated by those goods.
That norm is clearly violated in suicide or euthanasia, for in both, death is brought about as a means to a further benefit, such as the relief of suffering. Consider, by contrast, a case in which treatment options are framed as packages in which one set of health benefits is linked to a set of health burdens and compared to a different set of health benefits linked to another set of health burdens. The options are exclusive. So, for example, if one chooses the chemo- therapy course in response to one’s cancer, one may experience an increase in life expectancy, but accompanied by significant health burdens. Those burdens—nausea, hair loss, fatigue, sores, blood disorders, and others—are side effects: they are not, obviously, pursued as an end of the medical treatment; but neither are they chosen as a means to the desired health outcome—increased life expectancy. They are thus not intended. But similarly, if one refuses the chemotherapy because one desires to avoid the health burdens associated with that treatment, and thus to live one’s fewer remaining days in a less health-compromised state, then one likewise does not intend the shortening of one’s life. It too is a side effect of the choice to avoid burdens.
But it is thus clear that whatever choice one will make (for the chemotherapy or for its refusal) will have negative consequences for the good of life and health: such negative consequences are unavoidable and foreseeable. So, the absolute norm against intentional damage or destruction to a basic good could not be extended to include damage or destruction that occurs as a side effect (ie an unavoidable, yet foreseeable, negative consequence). That is, there could be no norm of the form ‘You ought never to cause harm as a side effect’, for ought implies can, and it is impossible always to avoid causing harm as a side effect.26
There thus emerges, in the course of the natural law tradition, the Principle of Double Effect.27 Put simply, an effect that would always be wrong to intend (eg harming the basic goods of life and health) can sometimes (though not always: more on that in a moment) be permissible if brought about as a side effect if there is a proportionate reason for permitting it. More traditional formulations articulate four parts to the rule: that the act be permissible in itself; that the evil effect not be intended; that the good effect not come about through the evil effect; and that there be a proportionate reason for accepting the bad effect in pursuit of the good.28
What is a proportionate reason? This can be answered in one way by returning to the case of abortion. In cases of vital conflict, where both the mother’s and the child’s life are at stake, natural law theorists have considered it permissible to remove the child (eg in a hysterectomy of a cancerous uterus) to save the mother. The child’s death is not intended: it is neither an end nor a means. It is rather an accepted side effect. That side effect is considered proportionate because it is fairly accepted: it passes the test of the Golden Rule. By contrast, even if we assume, with Judith Jarvis Thomson, that there exist abortions that are merely expellings, with death as a side effect, that side effect will typically be disproportionate— unfair—if done for reasons less grave than preservation of the mother’s life.
An account must likewise be given in end-of-life cases of the norms governing proportionate acceptance of bad, including lethal, side effects when life-sustaining or saving treatment is refused; we will provide that account in the next section. Here, it is important to note that the distinction between what is intended and what is a side effect is one with important legal weight. US Supreme Court Chief Justice William Rehnquist in Vacco v Quill, a case in which a right to assistance in death was claimed, detailed the importance that the distinction between intending death and permitting death as a side effect has had in a long line of precedents, and concluded that while a right to refuse treatment was constitutionally well-grounded, no such claim could be made for a right to hasten or bring about death.
Of course, some patients do refuse treatment in order to die; their refusals are, strictly speaking, suicidal. But, in general, the law correctly grants the right to refuse treatment to patients in order to protect them from unwanted interventions, with the side effect that this right might be abused; and the law straightforwardly prohibits the always impermissible act of intentionally taking life. The erosion of the distinction between intending and hastening death, on the one hand, and accepting death as a side effect, on the other, in recent law governing assistance in dying, as in Canada, some jurisdictions in the United States, and several European countries, obscures what the Rehnquist court, in its unanimous decision in Quill, saw clearly: while a right to refuse treatment is constitutionally well-grounded, no such claim could be made for a right to hasten or bring about death; this is a key moral distinction.29
C. Authority in Health Care
We can say something more about the justification for the patient’s right to refuse treatment, and indeed this is necessary in order to stave off a line of argument for assisted death that begins from false claims about the patient’s autonomy. Patients are granted, in law, a broad right of refusal of medical treatment, even when the consequences for the patient are lethal, and even when the motivations of the patient are obscure to many. Thus, Jehovah’s Witnesses are not to be given blood transfusions against their will, even when the transfusion is necessary to save their life, and when it seems obvious to all non-Witnesses that the transfusion is reasonable and right.
Typically, bioethicists see the importance of consent as rooted in the value of autonomy: to act contrary to a patient’s wishes is to violate that autonomy, and to fail to respect the patient as a person.30 And many bioethicists track the rise of their discipline to the rise of aware- ness of the importance of autonomy by contrast to an era in which physicians are thought to have exercised an overly paternalistic approach to patients, failing to provide them with adequate information and treating them for their own good without seeking consent.31 The extent to which this description accurately characterizes medicine prior to the second half of the twentieth century need not concern us here; what is important is that ‘respect for autonomy’ has increasingly become the source not just of negative side constraints—do not treat without informed consent—but also of positive obligations: do what the patient autonomously requests, provided that it is legal. We will return to this in our discussion of physician conscience in the final section. For now, we will provide an alternative account of the side constraint on treating patients without consent.
The alternative account focuses less on patient autonomy than on patient authority. Medical decisions are, like many other decisions, made in a social space that includes the patient, the patient’s family and friends, the medical professionals involved, and often others (eg institutional decision-makers, insurance providers, clergy). But all decisions involving more than one party face a similar problem: given that the various persons involved will have different reasons for acting, and different conceptions of the reasons available to be acted on, how is a final decision to be reached?
There are, as John Finnis has argued, only two possible ways when it comes to the decision-making process: either there must be unanimity, or authority.32 There are no further options, for every way of making a decision short of unanimity involves some form of authority. Even a vote in which the majority wins substitutes the authority of the majority for the decision of all. It is not a third way. So, who is to have authority in the context of medical decision making?
With rare exceptions, the authority is to be exercised by the patient. The reason for this can be seen by recalling that the goods of human life are variegated, whereas the goods of medicine are, for the most part, singular (though complex). Medicine is concerned for human life and health, and physicians have expertise precisely with regard to techniques, medicines, and other interventions that offer health-related benefits. But life and health are not the only good for patients. Rather, the chief good for patients in some particular decision is usually a function of their commitments, obligations, and circumstances as regards a number of goods, and how those goods are ordered in the patients’ lives with their families, communities, and neighbours. That ordering with regard to goods and persons, brought about by the agent’s commitments, is itself the patient’s life plan, or personal vocation. And this provides the rational standard by which the variety of options presented by the physician, in light of the physician’s health-care expertise, are to be evaluated: which option fits best (and is otherwise morally reasonable) with the patient’s overall vocation, with the ordering of his or her life as regards goods and persons.
A competent patient is clearly the person best placed to make that assessment. The idea of personal vocation thus plays two roles here: (1) it provides the justification for patient authority, an authority that is to be honoured by the medical profession and protected legally; and (2) it provides the standard for patients themselves to bring to bear on their health- care choices. In those choices, each option will bring about competing sets of benefits and burdens that are incommensurable with one another; there can, therefore, be no ‘weighing up’ to see which option is ‘the best’. Yet, the natural law tradition has embraced the idea that burdens may be rejected, and benefits foregone, if those burdens are not ‘proportionate’ to the promised benefits. The idea of patient vocation provides an interpretation for this claim: if it is unreasonable, in light of one’s vocation, to accept some burden in the pursuit of the promised benefit, then that burden is not proportionate. If it is reasonable, in light on one’s vocation, to accept some burden, then that burden is proportionate.33 Thus, for ex- ample, a treatment option might be judged to be not proportionate if it offered some chance of extended life at the cost of rendering a patient unable to fulfil his or her familial responsibilities. It is important to note, of course, that when such a patient refuses a life-extending intervention, the shortening of life is not intended, but a reasonably accepted side effect.
This conception of patient authority overlaps considerably, but not entirely, with the notion of patient autonomy. The overlap extends to converging claims on both accounts that competent patients have a nearly absolute veto on proposed medical interventions. But it differs in at least the following two ways. First, it is commonplace that authority is always limited, and a patient’s decision-making authority is likewise limited: it is primarily an authority to accept some offers made by physicians and to reject others. It is not of itself an authority to demand some particular intervention independently of the physician’s best medical judgment. The idea of patient authority thus does not bring with it an internal nisus towards the idea of a patient entitlement to, for example, assistance in ending her life.
A second difference is this: autonomous acts increasingly are thought to be self- ratifying: if the decision is autonomously made, then it is correct. But a decision may be legitimately authoritative, while also being wrong. Authority can be exercised legitimately, but foolishly, and even immorally, without eroding the reasons those under authority have for obedience. Thus, patients can and sometimes will make imprudent and even immoral choices to refuse care; that the decisions are their own does not render these decisions cor- rect. But that the patient has authority does create a strong, though sometimes defeasible, obligation on the part of physicians and others to honour the patient’s exercise of authority. The law, again, rightly recognizes this, and does not require physicians or others to subject a patient’s refusals to a judgment of overall moral propriety in order to comply.
D. Allocation of Resources and the Right to Health Care
We turn now to a rather different domain of medical law and public policy: that concerned with the allocation of health-care resources; and to the question of whether persons may be said to have a right to health care. Whereas questions concerning the refusal or withdrawal of medical care, particularly, though not exclusively, at the end of life, are questions that require essentially personal considerations, such as considerations of personal vocation, questions of the political distribution of resources, and establishment of political or legal entitlements, require more impersonal considerations, and are governed especially by norms of fairness.
The questions of this section are complicated and controversial, even among natural law thinkers, to a much greater extent than any of the other issues addressed in this chapter. Nevertheless, natural law thinkers in general start from a shared set of claims, which we will articulate here; working out the implications of these claims is beyond the scope of this chapter.
The foundational claims concern the natural law justification for private property; the nature of interpersonal obligations of charity;34 and the nature and role of political authority. As regards the natural law approach to private property, theorists recognize a ‘natural’ but not original right to private property. The goods of the world do not come with particular persons’ names affixed to them, nor are they collectively owned. But ownership of the world’s goods is a reasonable way of dividing up and caring for those resources which by their nature exist, all of them, for the benefit of all human persons. Private ownership is thought to foster the common good for a number of pragmatic reasons, such as facilitating the development and use of resources in ways that advance the common good, and avoiding quarrels; and because it promises greater personal discretion in the discerning and carrying out of individuals’ personal vocations.35
Nevertheless, most natural law thinkers hold with St Thomas, and contrary to, for ex- ample, certain libertarians, that the ‘universal destination of the world’s goods’ remains a limiting principle on the authority that individuals have over their property. That which is not used for grave needs, of the person and those to whom he or she owes duties of care, and for the carrying out of personal vocation, is considered superflua, and is owed to those in need.36 Of course, making decisions as to how to meet those needs with one’s superflua is itself a self-constituting act and part of many persons’ personal vocations, so there is value in persons making those decisions for themselves.
Under certain conditions, however, thinkers in the natural law tradition have held that political authority may be permitted or required to ensure that the grave needs of some are met, and that the significant obligations of charity of those with superflua are not left unful- filled.37 The role of the state is, again, to ensure that the totality of conditions necessary for citizens to pursue upright and flourishing lives, individually, and in community (commu- nities) with one another, is satisfied; this set of conditions is the political common good. It is also the source of political authority, for that authority is necessary and hence justified to ensure the successful realization of those conditions for flourishing that individuals and the many forms of civil society are incapable of providing for themselves.
Thus, where grave individual needs will go unmet despite individual and societal ini- tiatives, and resources exist to meet those needs, then the state can, and sometimes ought to, ensure that those needs are in fact met. Indeed, even where needs can be met without the exercise of political authority, if those needs can be met more successfully or efficiently with the aid of political authority, then again, the exercise of that authority is called for.
(By the same token, when those needs may be more efficiently met without the use of that authority, they should be.) So, certain welfare rights or entitlements will be justified if: (1) there are grave unmet needs; (2) there are adequate resources for meeting those needs;
(3) the state can more efficiently help ensure those needs are met than can other agents; and
(4) it can do so without seriously eroding the capacity of those with resources from being self-constituting agents, or doing other harms.
One important feature of health care suggests that political authority in developed nations can and will need to be exercised with regard to its distribution.38 This is the already deeply social nature of health care. Health-care services in developed nations are distributed across many agents, including patients, physicians, nurses, administrators, and others; and across many institutions, such as physician practices and networks, hospitals, drug companies, insurance companies, and others. This situation marks a significant change from health care in times past. Is it the case that such a widely distributed set of agents, practices, technologies, and institutions, with their competing interests, problems, and challenges, will be adequately efficient, upright, and cooperative to ensure that health care is fairly pro- vided, paid for, and consumed? It seems unlikely.
Accordingly, at a minimum, political authority seems needed for regulatory and coordination purposes. Without such regulation and coordination, or with only poor regulation and coordination, access to health care is likely to be impaired for some persons and this is an injustice.39
A second feature of health care is also relevant: all persons have an abiding and significant need for health care, yet not all will be adequately cared for in the absence of political authority, and not merely because some agents default on their responsibilities. Rather, as the cost of health care and health technology rises, it is increasingly difficult or impossible for the health-care needs of the poor to be met using their own resources, or to be met by charitable individuals or organizations, without assistance by the state (though it is desirable, to the extent possible, to rely on institutions of civil society than on the state). So, not only must the state engage in some regulation of health care to ensure fairness, it must also create and maintain some political entitlements to health care for those unable to provide it for themselves.
It is in light of these considerations that a ‘right to health care’ must be understood: that right will pertain in the minimum case to individuals who are unable to provide adequate health care for themselves, living in societies and states sufficiently developed that they can effectively provide, or coordinate the provision of, health care to those individuals. In any given society, however, this right must then be much more concretely specified than we have done here: who precisely has that right; what precisely are they entitled to; how precisely are those entitlements to be funded and delivered; and so on.40
How far beyond this minimum does natural law carry us? That is a matter of controversy. Some, sensitive to natural law’s demand that citizens not be taxed beyond their power to exercise their own self-determination and fulfil their obligations of charity themselves, advocate lesser state involvement, and perhaps more market-based solutions to meeting the broader health-care needs of citizens. Others, impressed with the difficulties of achieving transparent market conditions, and with the pervasive injustices found in much health-care provision and funding, argue for a more extensive use of political authority in addressing these issues. These disagreements do not admit of resolution here.41
There is also, inevitably, a natural degree of indeterminacy in how a particular political society can or should work out the details of its scheme of health-care entitlements and regulations. This indeterminacy results from different answers that can be given that arise from within the domain of health care: different societies, for example, will make different judgments about what resources to direct to preventative, basic, or intensive care, as a result of differences in need, resources, and priorities. Other indeterminacies will result from the fact that resources spent on health care could also be spent elsewhere, for the sake of other equally important basic goods. What amount of resources should be directed to health care instead of education is a question that has no determinate answer, and that will be reason- ably answered in different ways by different societies.42
For these reasons, natural law theorists have not provided, and to some extent cannot provide, determinate answers to all questions about health-care distribution and rights. Settling such questions requires prudence and in many cases determinations of the law: decisions that things will be thus and so, even though they could reasonably have been determined to be otherwise.
We turn now to the final area in which natural law reflection generates sound norms for medical practice and law, the questions surrounding ‘physician rights of conscience’. Such questions arise as a result of an erosion of agreement on the norms that should govern critical areas of health care, prominent among them being the areas we have discussed above, such as abortion and euthanasia. Western societies almost universally enforce, legally, extensive rights to abortion, and they increasingly enforce considerable rights to assistance in ending one’s life. At the same time, a significant part of the population, and many members of the health-care profession, continue to recognize the truth of the norms we have here articulated concerning, especially, the protection of innocent human life, the difference between intention and side effect, and the limited authority of patients. They recognize, as well other norms, which we have not addressed, but which follow from the principles we have identified, in particular the principle that the organic functioning and unity of a human person are not to be damaged save for the sake of the overall organic functioning and unity of that same person. Human health is to be considered integrally, and the removal of a dis- eased limb, for example, is not seen by natural law theorists as intentional damage to health for the sake of health, but rather action for the patient’s health, integrally understood. By contrast, surgeries meant to reassign the biological sex of a human being are characteristically seen by natural law theorists as a form of mutilation, as are surgeries to eliminate an agent’s reproductive capacity for non-medical reasons; they are thus ruled out by the natural law prescription against intentional damage to the basic good of health.
Many physicians who adhere to these norms of the natural law are conflicted because the requirements of natural law and of the positive law (and increasingly the norms of their profession) point to different directions. This creates a situation of conflict among physicians and their patients, their profession, and the broader society. When physicians refuse to pro- vide certain services (eg abortion, euthanasia, gender reassignment surgery, or sterilization), patient expectations are thwarted; increasingly rigid professional norms are violated; and there is a default on a perceived social contract, ratified by the laws that give physicians a monopoly on certain rights (such as the right to perform surgery) in exchange for their willing provision of services.43
Natural law thought raises two considerations in response to this situation that provide guidance for law and professional policy. First, it is to be stressed that the gap in current law and professional practice between physicians who adhere to norms against intentional killing and mutilation, and to consistently health-and-life-oriented practices, on the one hand, and laws and practices permissive of intentional killing, mutilation, and non-health- related expectations of medical professionals, on the other, is a failure on the part of the law and the medical profession, and not those physicians with both good moral judgment and practical integrity. The first form of advice to be given in such circumstances is that better laws and professional standards need to be (re)developed that consistently respect the vocational commitment of medicine to heal and never to harm.
The second form of advice is that, in the current deficient state of affairs in which law and the medical ethos remain permissive of practices that are at odds with the good of life and health, natural lawyers point to two important goods that will be served by accommodating physicians who accept the more traditional health-and-life-oriented norms—namely, integrity and religion. Integrity is the good of having an integrated practical character, in which judgment, choice, action, and emotion are all coherently unified. To some extent, that unity can be achieved in an evil person whose character is entirely oriented to what is bad. Nevertheless, like all basic goods, the good of integrity is realized more fully when it is realized in morally upright ways. But integrity is a basic good that is to be protected not just in oneself, but in others.
Thus, laws and practices that require acts of persons that are contrary to their integrity do a wrong to those persons if there is not adequate reason for requiring those acts.44 Of course, persons may be thwarted from pursuing wicked plans even if they pursue them with integrity; but when possible human persons are to be given the practical possibility of living out their lives without significant threats to the integrity of their practical character.
The same is true of the good of religion. Agents who see their lives and character as shaped by religious commitments and concerns are, when possible, to be given the practical space necessary for them to be able to do so: this fosters a basic good. Of course, human sacrificers and suicide bombers are to be thwarted, even when they act for religious reasons, in order to safeguard the lives and health of innocent persons. But many other circumstances can be envisaged when the stakes are not so high that agents must be stopped from acting on the basis of religious convictions.45 Thus, for example, many states have exemptions from otherwise general drug laws providing exemptions if certain drugs, such as peyote, are used in religious ceremonies.
Both the good of integrity and the good of religion are obviously implicated in the decisions of many ‘dissenting’ physicians and other health-care professionals who refuse to participate in abortions or a patient’s suicide; or who refuse to aid in the mutilation of healthy bodies; or to prescribe medications whose purposes are, they believe, contrary to good health and morality. The integrity and religious commitments of such health-care practitioners ought to be protected to the extent possible, barring serious reasons not to. Can opponents of accommodating physician conscience in these situations offer such reasons?
In these cases, they cannot. The question is not to be settled simply by identifying what the law permits or what patients expect, since the question is primarily normative. Nor can doctors who refuse to perform these services be convicted of acting unfairly or in a dis- criminatory manner: they are acting from sincere and intelligently formed conscience in refusing to perform or cooperate with certain kinds of acts that harm the goods of life and health. Their refusals are thus unlike the refusals of racist doctors in times past to serve classes of persons. Is, then, the medical profession and its values put at risk by such dissenting physicians’ actions? If it were, this too would be a good reason to refuse them accommodation. But it is not: such physicians in fact act from considered convictions about the importance of the very good on which the medical profession is based and towards which, in principle, its existence is ordered: the good of life and health (this again differentiates them from racist physicians). There is no real medical profession absent this conviction, merely a set of technical skills that can be put at the service of whatever desires it is legally permitted to satisfy. Accordingly, we suggest, the medical profession is itself best served by accommodating those professionals whose conscientious refusals are governed by the considerations that reflect the authentic ethos of the profession, the authentic concerns of law, and the true and practically reasonable deliverances of the natural law.
Natural law theorists approach the task of moral theory by enquiring into the foundational reasons for human action. Such reasons are found in basic human goods that are consti- tutive of human flourishing. Natural law theorists then ask what norms are prescribed by practical reason as protecting those goods and what forms of authority, including legal au- thority, are likewise needed to protect those goods. Such an approach bears fruit in the do- main of medical ethics and law, where an especially vulnerable good, life and health, is at stake. The natural law approach to medicine, both in ethics and in law, thus serves to protect and promote human flourishing in this important domain.
45 See C Tollefsen, ‘Conscience, Religion, and State’ (2009) 54 American Journal of Jurisprudence 93–116.
Anderson, R, ‘Always Care, Never Kill: How Physician-Assisted Suicide Endangers the Weak, Corrupts Medicine, Compromises the Family, and Violates Human Dignity and Equality’, Report of the Heritage Foundation (24 March 2015), http://www.heritage.org/health-care-reform/re- port/always-care-never-kill-how-physician-assisted-suicide-endangers-the-weak accessed 15
Aquinas, St T, Summa Theologica (Benziger Bros, 1947).
Beauchamp, TL and Childress, R, Principles of Biomedical Ethics (7th edn, Oxford University Press, 2013).
Boyle, J, ‘Praeter intentionem in Aquinas’ (1978) 42 Thomist 649.
Boyle, J, ‘Sanctity of Life and Suicide: Tensions and Developments within Common Morality’ in BA Brody (ed), Suicide and Euthanasia (Kluwer, 1989), 221–50.
Boyle, J, ‘Who Is Entitled to Double Effect?’ (1991) 16 Journal of Medicine and Philosophy 475. Boyle, J, ‘Fairness in Holdings: A Natural Law Account of Property and Welfare Rights’ (2001) 18
Social Philosophy and Policy 206.
Boyle, J, ‘Limiting Access to Healthcare: A Traditional Roman Catholic Analysis’ in HT Engelhardt and MJ Cherry (eds), Allocating Scarce Medical Resources (Georgetown University Press, 2002), 77–95.
Boyle, J, ‘An Appreciative Response’ in C Tollefsen (ed), Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Springer, 2011), 243–58.
Boyle, J, ‘On the Most Fundamental Principle of Morality’ in J Keown and RP George (eds), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press, 2013), 56–72.
Boyle, J, ‘Intention, Permissibility, and the Structure of Agency’ (2015) 89 American Catholic Philosophical Quarterly 461.
Cherry, MJ, ‘Social Justice, Charity, and Tax Evasion: A Critical Inquiry’ in C Tollefsen (ed), Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Springer, 2011), 185–204.
Corvino, J, Anderson, R, and Girgis, S, Debating Religious Liberty and Discrimination (Oxford University Press, 2017).
De Campos, TC, The Global Health Crisis: Ethical Responsibilities (Cambridge University Press, 2017). Dyer, FN, The Physician’s Crusade against Abortion (Science History Publications, 2005).
Emanuel, E, ‘Four Myths about Doctor Assisted Suicide’, The New York Times (27 October 2012), https://opinionator.blogs.nytimes.com/2012/10/27/four-myths-about-doctor-assisted-suicide/
?smid=tw-share accessed 15 July 2019.
Finnis, J, Moral Absolutes: Tradition, Revision, and Truth (Catholic University of America Press, 1991). Finnis, J, Aquinas: Moral, Political and Legal Theory (Oxford University Press, 1998).
Finnis, J, ‘Euthanasia and the Law’ in Human Rights and Common Good, Collected Essays (Oxford University Press, 2011), vol III, 251–70.
Finnis, J, Natural Law and Natural Rights (2nd edn, Oxford University Press, 2011).
George, RP and Lee, P, ‘The Wrong of Abortion’ in AI Cohen and C Wellman (eds), Contemporary Debates in Applied Ethics (Blackwell Publishers, 2005).
George, RP and Tollefsen, C, Embryo: A Defense of Human Life (2nd edn, Witherspoon, 2011).
Gomez-Lobo, A, Bioethics and the Human Goods: An Introduction to Natural Law Bioethics
(Georgetown University Press, 2015).
Gorsuch, NM, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006). Grisez, G, ‘The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1–2,
Question 94, Article 2’ (1965) 10 Natural Law Forum 168.
Grisez, G, The Way of the Lord Jesus, vol 1: Christian Moral Principles (Franciscan Herald Press, 1983). Grisez, G, The Way of The Lord Jesus, vol 2: Living a Christian Life (Franciscan Press, 1993).
Grisez, G, ‘Health Care Technology and Justice’ in C Tollefsen (ed), Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Springer, 2011), 221–41.
Kaczor, C, The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice (2nd edn, Routledge, 2015).
Kass, L, ‘Neither for Love Nor Money: Why Doctors Must Not Kill’ (1989) 94 Public Interest 25.
Keown, J, ‘Euthanasia in the Netherlands: Sliding down the Slippery Slope?’ (1995) 9 Notre Dame Journal of Law, Ethics & Public Policy 407.
Keown, J, The Law and Ethics of Medicine: Essays on the Inviolability of Human Life (Oxford University Press, 2012).
Lee, P and George, RP, Body-Self Dualism in Contemporary Ethics and Politics (Cambridge University Press, 2008).
Lee, P, Tollefsen, C, and George, RP, ‘The Ontological Status of Embryos: A Reply to Jason Morris’ (2014) 39 Journal of Medicine and Philosophy 483.
Lu, R, ‘Why Pro-Lifers Don’t Support Punishing Women for Abortion’, The Federalist (5 April 2016), http://thefederalist.com/2016/04/05/why-pro-lifers-dont-support-punishing-women-for- abortion/ accessed 15 July 2019.
Lustig, A, ‘Natural Law, Property, and Welfare Rights’ in C Tollefsen (ed), Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle (Springer, 2011), 205–20.
MacLeod, A, Property and Practical Reason (Cambridge University Press, 2015). McMahan, J, The Ethics of Killing (Oxford University Press, 2003).
Moschella, M, To Whom Do Children Belong? Parental Rights, Civic Education, and Children’s Autonomy (Cambridge University Press, 2016).
Parfit, D, Reasons and Persons (Oxford University Press, 1989).
Savulescu, J and Schuklenk, U, ‘Doctors Have No Right to Refuse Assistance in Dying, Abortion, or Contraception’ (2016) 31 Bioethics 162.
Siegler, M, ‘Searching for Moral Certainty in Medicine: A Proposal for a New Model of the Doctor- Patient Encounter’ (1981) 57 Bulletin of the New York Academy of Medicine 56.
Thomson, JJ, ‘A Defense of Abortion’ (1971) 1 Philosophy and Public Affairs 47.
Tollefsen, C, ‘Conscience, Religion, and State’ (2009) 54 American Journal of Jurisprudence 93.
Tollefsen, C (ed), Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle
Tollefsen, C, ‘Double Effect and Two Hard Cases in Medical Ethics’ (2015) 89 American Catholic Philosophical Quarterly 407.
Tollefsen, C, ‘Natural Law, Basic Goods, and Practical Reason’ in G Duke and RP George (eds), The Cambridge Companion to Natural Law Jurisprudence (Cambridge University Press, 2017), 133–58. Tollefsen, C, Lee, P, and George, RP, ‘Marco Rubio Was Right: The Life of a New Human Being Begins at Conception’, The Public Discourse (15 August 2015), http://www.thepublicdiscourse.com/2015/
08/15520/ accessed 15 July 2019.
Wildes, KW, ‘Creating Critical Care Resources: Implications for Distributive Justice’ in HT Engelhardt and MJ Cherry (eds), Allocating Scarce Medical Resources (Georgetown University Press, 2002), 200–11.
Zaner, RM, A Critical Examination of Ethics in Health Care and Biomedical Research: Voices and Visions (Springer, 2015).
Do you need urgent help with this or a similar assignment? We got you. Simply place your order and leave the rest to our experts.