The Overinclusive Problem & Disability
Assisted dying's problem of definition
Calling all bioethicists! I’m organizing a bioethics workshop that will take place in Toronto on May 17th and 18th. The theme is philosophical bioethics, which can include clinical ethics and other applied issues with some discussion of theory. If you want to present, the deadline to submit an abstract is January 15th. The keynote speaker is Dominic Wilkinson of Oxford University. More info is at the link here.
I recently wrote about an effect of jurisdictions choosing to list the criteria for qualifying for assisted dying instead of listing the medical conditions that qualify. All jurisdictions have opted for the criteria approach. There are a lot of medical conditions, so listing all the appropriate ones would be difficult, but also because doing so would involve controversial value judgments when deciding which medical conditions are bad enough to justify assisted dying.
An effect of this approach is what I call the Overinclusive Problem. Since the law doesn’t usually rule out certain types of medical conditions explicitly, people might believe that assisted dying is available more broadly than it is. Sometimes the law does rule out certain conditions, as Canada has done by excluding mental illnesses as the sole underlying medical condition until next year.
Last month, Vice News published an article called “Canada Will Legalize Medically Assisted Dying For Eligible People Addicted to Drugs”. As I discussed, it’s true that Canada is doing this, but it’s true because, in principle, any mental illness can qualify. In practice, the number of people who will meet the other criteria due to a substance use disorder will be very low.
Assisted dying isn’t the only area where this problem arises. Consider anti-discrimination legislation for disabilities. The law needs to say what counts as a disability according to the law so that people can figure out if they’ve been discriminated against. Listing all the qualifying disabilities would be difficult, so it’s easier to list the criteria. The Americans with Disabilities Act goes for the easier option:
An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered. [Emphasis added]
Canada’s medical assistance in dying law has received a lot of criticism about its inclusion of disabilities. Carter, the Supreme Court of Canada decision that struck down the prohibition on assisted dying, uses the phrase “illness, disease or disability”, which was adopted in the law that made assisted dying legal.
Canada’s Special Joint Committee on Medical Assistance in Dying, which published its ‘final’ report in February—more hearings have since taken place—describes a concern some people have with including ‘disability’:
The availability of MAID for persons with disabilities was also described as stigmatizing, entrenching the notion that disabled lives have less value. According to many witnesses, the removal of the reasonably foreseeable death criterion under Bill C-7 has effectively singled out persons with disabilities in a discriminatory manner, making them the only vulnerable group with a “special pathway to MAID” if they are suffering intolerably.
People read the law, see that it allows people to qualify because of their disability, then conclude that disabilities in general will count. This is the Overinclusive Problem. As with mental illnesses, many disabilities won’t meet the other criteria for MAID. Lawmakers could have taken the other approach—listing all the approved disabilities—but that would have been too difficult and would have caused other problems.
It’s worth mentioning that some opponents of MAID aren’t misunderstanding the law. They think it’s a mistake to include disabilities because it’s saying that disabilities can be bad enough to make life no longer worth living, which they believe isn’t the case. This isn’t plausible. Some disabilities really do cause suffering and make it difficult to engage in activities that give life meaning. This approach also denies the claims of people with disabilities who say that their disabilities cause them intolerable suffering. That was the basis of the Truchon decision, which struck down the ‘reasonably foreseeable death’ requirement. The plaintiffs, Jean Truchon and Nicole Gladu, argued that their disabilities should qualify them for MAID. The judge agreed.
In its ‘final’ report, the Special Joint Committee makes twenty-three recommendations. The eleventh calls on the Government of Canada to “explore potential amendments to the Criminal Code that would avoid stigmatizing persons with disabilities without restricting their access to MAID. Options considered should include replacing references to ‘disability’ in section 241.2(2) of the Criminal Code.” Importantly, the report doesn’t recommend changing the substance of the law so that people with disabilities will no longer qualify.
In an article I wrote about this for Impact Ethics last May, I said that changing the wording of the law is fine. Require “a serious and incurable medical condition” instead of “a serious and incurable illness, disease or disability.”
I still think this would be okay, but it doesn’t solve the Overinclusive Problem, which we’re stuck with because listing specific conditions would be worse. People will continue to claim that “Canada now allows MAID for people with condition x”. Even when it’s true, it isn’t the full picture.
Quick Hits
Here are some other stories that caught my attention this week:
Jeremy Davis has a nice piece in Inside Higher Ed on the effects of ChatGPT on teaching.
Some family physicians in Ontario are considering reducing their clinical hours to put pressure on the government to provide more funding for in-person care.
The Atlantic’s daily newsletter wrote about the breakthrough CRISPR treatment for people with sickle-cell disease. They discuss some of the ethical issues involved.
It was a bad week for coercive paternalists after the recently-elected New Zealand government announced plans to scrap the smoking ban, which would have eventually banned the sale of all tobacco products.
Speaking of bad times, effective altruism has had a bad year, but Scott Alexander makes the case that the movement has done a lot of good.
Chris Moody wrote in The Atlantic about getting rid of Wi-Fi at his rural home and installing a landline instead. In includes this gem: “When a friend in her 20s tried to call and got a busy signal, she figured the phone was broken: She’d never heard that sound before.”