Machan’s Archives: In Defense of the Right to Assisted Suicide

Tibor R. Machan

[From Criminal Justice Ethics, Summer/Fall 1985]

Should aiding suicide be illegal? That is the question which faces legislators who are being urged to repeal statutes which state, basically, “Every person who deliberately aids, or advises, or encourages another to commit suicide is guilty of a felony.” I will argue, ever so briefly, that not all cases should aiding suicide be illegal, although the severest onus of proof of justification would be required in such cases.

The issue here is fairly clear, despite many complexities which surround it. Ordinarily it is wrong and should also be illegal to deliberately take another person’s life without a just cause such as self-defense or the defense of one’s community. Even in cases in which ultimately the taking of human life is deemed legally justified, the agent of such action is responsible to show that he or she was justified by standards which a just legal system must respect.

But what about aiding suicide? As Joseph Piccione puts it,

“[Human] Life, as seen in the context of the documents of the nation’s founders, must be affirmed as a bedrock value, and even a foundational right upon which other fundamental rights are based. From the initial words of the Declaration of Independence, the value placed on life is unsurpassed….”

It is undoubtedly true that the American political tradition more than any other places paramount value upon each individual human being’s right to life. The Declaration of Independence does and the fifth and fourteenth amendments to the U.S. Constitution unambiguously affirm this right and, in the words of the fifth, no person may be “deprived of life, liberty, or property without due process law.”

Yet there is a clear distinction between affirming the right to life and life itself. The American political and legal tradition does not so much affirm life as the right to life “as a bedrock value.” (In this respect Mr. Piccione overstates his otherwise sound point!) It may be true that the ultimately ethical basis for such a right must be the imperative to live one’s life for every individual. But the law does not have as its central goal to secure such moral conduct, only the conditions for choosing to pursue a flourishing life, that is, the official securing of the right to life. But that right does not itself obligate everyone to respect life or preserve it only not to deprive others of it. For example, within the framework of a legal system based on the (natural) human right to life, all the individuals must also be protected in their freedom either to enhance or to waste their lives. In other words, to value life is an ethical imperative, something one ought to do as a matter of one’s moral responsibility but the law, which should and in the American tradition does recognize the corollary value of (negative) liberty, cannot do for individuals what individuals ought to do for themselves. (The well known Kantian philosophical slogan “ought implies can” also tells us this: If we ought to value and enhance life, we must be free to either do so or not do so. If the law forced us to value life, then it would no longer be possible to gain moral credit for doing so and moral demerit for failing to do so.)

Now the question is, given that everyone has an inalienable right to life, may the legal system permit suicide? The answer is that it may, indeed must. In other words, the legal protection of the right to life implies the protection of the exercise of this right, which may be manifest in suicide. The right to life means that the possessor of life may not be interfered with in his or her choice and action to squander his or her life. (Of course suicide may be made illegal by means of the prospective suicide’s prior willing commitment to perform certain actions, to fulfill certain obligations–for instance, to support a family, to repay a debt, to perform any other contractual obligation.)

But what about aiding and abetting suicide? This is a more difficult matter. If there is one thing the right to life means, it is that no person is morally justified in, and any person may be prevented from, intentionally initiating the killing of another person (which, of course, does not mean that one may not intentionally react in a way that leads to another’s death, as when one reacts to violent aggression from another person.) If this is so, how could one ever consider aiding and abetting a suicide anything but a kind of wrongful killing or murder?

The answer to this is that under certain extraordinary circumstances a person may obtain permission to kill another, which the law should honor and protect against interference. The right to life means not initiating the killing of another, but this could be adequately qualified by being asked to kill another by that other, when that other demonstrably wants to kill himself or herself but is incapable of doing so or could not do so without incurring intolerable hardship and pain.

This point may be made morally plausible by nothing that one may obtain permission from another to act in ways that place that other’s life in great jeopardy, as when one enters the boxing rink and is permitted to physically assault another in a way that would without such permission be a clear case of assault and battery. Knife throwers, acrobats, mountain climbers, surgeons, and many other persons place willing other persons at grave risk of or injury or even losing their lives. When these willing others do lose their lives or suffer injury in part due to the actions of another, the main question that faces us is whether consent was involved, and if the answer is in the affirmative, the person partly instrumental is not held liable or responsible for the death or injury (unless negligence or some ulterior motive can be proven).

It seems to me then that, under certain rare circumstances, aiding and abetting suicide can be legally justified. I base this view on the existence of a right of every person to use or dispose of his or her life and to consent to another person’s acting in a way that will give the choice to end life practical significance. (Under very rare circumstances, once one’s life by all reasonable estimate can no longer contain any but the most negative meaning–such as relentless pain and agony–the basic moral imperative to maintain and enhance life could only be translated to mean to end it.)

None of this means that involuntary euthanasia should be legal or that someone should be given legal protection when hired simply to kill another who has consented and indeed sought the “service.” The law must protect individual human rights, including the right to life. It must not weaken this protection. Only when it is as clear as possible that under the circumstances an individual’s choice not to live could only be carried out through another person’s solicited aid or support, would it be justified for the law to protect such homicide.