A Moral Fiction
Letting die is sometimes killing
In this post and the next, I’m going to discuss two examples of moral fiction. The term ‘moral fiction’ is my own and is analogous to legal fiction, which is “an assertion accepted as true, though probably fictitious, to achieve a particular goal in a legal matter.” Likewise, in medicine, there are assertions that most people accept as true but that are actually false, yet we propagate them because they justify the ends we want to promote.
The biggest moral fiction in medicine is the claim that doctors only started killing patients when assisted dying became legal, and so assisted dying marked a dramatic departure from millennia of physicians only acting as healers. As I explain below, this fiction is quite recent. But first, here’s why it’s a fiction.
Consider the following cases based on examples from Shelly Kagan and Dan Brock:
Case 1
James stands to inherit a large sum of money upon his uncle’s death. His uncle has been in a hospital on a ventilator for months. At the last family meeting, the attending physician said that James’s uncle will require mechanical ventilation permanently, but is otherwise stable. Unable to wait any longer, James goes into his uncle’s hospital room and disconnects the ventilator, thereby killing his uncle.
Case 2
Sarah’s ALS has worsened to the point that she now requires mechanical ventilation. She and her partner have been preparing for this for a long time. She agrees to be on the ventilator for a month, but then decides that her quality of life has decreased so much that she can no longer engage in the activities she finds meaningful. She asks the physician to disconnect her from the ventilator. The physician does so, thereby letting Sarah die.
I’ve described these stories according to the moral fiction: James kills his uncle; the physician allows Sarah to die of her underlying illness. The problem is that James and the physician act identically—they both disconnect someone from a ventilator—so it’s difficult to justify the claim that one is a case of killing while the other is a case of letting die. After all, we would obviously reject James’s defense were he to claim “I didn’t kill my uncle; he died of his underlying illness!”
To be sure, James acts wrongly and the physician doesn’t. We can’t conclude that they performed different kinds of acts, but there’s no problem getting different moral conclusions from the same type of action, and we don’t need to appeal to the doing/allowing distinction to get this result. James acts maliciously out of self-interest and without his uncle’s consent. We might also suppose it wasn’t in the uncle’s best interest or in accordance with his wishes, and so on. In contrast, the physician does the right thing. Sarah gives informed consent to the removal of the ventilator, the decision was in line with her values, and, given her advancing ALS, it was reasonable. James kills immorally; the physician kills morally.
Thus, the moral fiction. Even in places where assisted dying is illegal, physicians kill patients all the time. This isn’t cause for concern, since, as Sarah’s case shows, killing can be morally permissible.
Where did the moral fiction come from? As best I can tell, it started with Karen Ann Quinlan’s court case. Quinlan was twenty-one when she suffered an accident that led to a persistent vegetative state. She was placed on a ventilator, which her parents petitioned the court to have removed. Quinlan’s court-appointed guardian argued that removing the ventilator would be unlawful homicide if it led to death. (Quinlan’s doctors also opposed its removal.)
The Supreme Court of New Jersey sided with Quinlan’s parents. On the matter of homicide, the court said the following:
We conclude that there would be no criminal homicide in the circumstances of this case. We believe, first, that the ensuing death would not be homicide but rather expiration from existing natural causes. Secondly, even if it were to be regarded as homicide, it would not be unlawful.
The court’s argument is that disconnecting the ventilator wouldn’t be one person killing another—i.e., homicide—but rather Quinlan dying of “existing natural causes.” The moral fiction is born (and, I suppose, the legal fiction). Were someone to have maliciously disconnected Quinlan, homicide charges would have been morally appropriate.
Perhaps sensing that their argument might not convince everyone, the court then says that, strictly speaking, it might be one person killing another (homicide), but it wouldn’t be against the law. This latter option is the correct one. Although Quinlan didn’t die when the doctors disconnected the ventilator, if she had, it would have been the doctors’ actions that directly caused her death, and thus killed her.
Although the court gave both options—“this isn’t killing” and “this isn’t illegal killing”—it’s easy to see why the moral fiction took hold. It’s easier to convince doctors (and easier for them to believe) that what they’re doing isn’t killing than it is to convince them that killing is sometimes the right thing to do, so the first option was the easier sell. It appeals to a deep, universal intuition that doing harm is worse than merely allowing it.
Importantly, I’m not claiming that bioethicists got together and decided to proceed with the moral fiction while all secretly believing that disconnecting ventilators is actually killing. On the contrary, I suspect that most bioethicists believe that the moral fiction is a fact. Either way, as legal fictions show, we can accept moral fictions as fictions but still see their usefulness. (The Harvard Ad Hoc Committee’s report “A Definition of Irreversible Coma,” which appealed only to moral considerations to “define irreversible coma as a new criterion for death,” also introduced a useful moral fiction.)
Moral fictions can be useful, but we should recognize that there are downsides to appealing to the moral fiction that removing life-sustaining treatment isn’t killing. The first is that it makes a valuable heuristic—don’t kill people—into a taboo that killing is always wrong. It’s convenient to say “don’t worry, this isn’t even killing”, but it’s false and it prevents deeper reflection on the morality of killing.
Second, although society benefited from the moral fiction, it kicked the reflection can down the road until assisted dying entered the debate. Many healthcare providers and members of the public appeal to the moral fiction to oppose assisted dying while defending the removal of life-sustaining treatment.
Finally, promoting the fiction, even when beneficial, can become gaslighting when directed at a healthcare provider, patient, or substitute decision maker. The benefit of the fiction for an SDM is the same as for a provider: it’s more palatable to frame the withdrawal of life-sustaining treatment as letting the patient die of their underlying condition or “existing natural causes” than saying that they’re consenting to the killing of their loved one. But for many SDMs in that situation, it certainly feels that they’re killing, in which case, the better option practically speaking might be to tell it like it is.
One last point. My claim is that disconnecting life sustaining treatment is killing, but I’m not denying the existence of the distinction between doing and allowing harm. That’s a strong intuition that exists across cultures. As I discussed in my article on assisted dying for newborns, there’s a genuine difference between the act of killing and the act of letting die (though, following James Rachels, I argued that there’s no moral difference). Rachels’s cases are different because the actions of the people involved are different. In those cases, the people act differently—one kills and one lets die—but their actions are equally wrong. In contrast, withdrawing a ventilator is killing either way, but some withdrawals are moral and others are immoral.
Legal fictions exist because they serve a useful purpose and are recognized as fictions. Moral fictions can be useful, but we should be clear about what's fiction and what's fact.