Vol. 10 No. 10 (October 2000) p. 562-565.

ENDINGS AND BEGINNINGS: LAW, MEDICINE, AND SOCIETY IN ASSISTED LIFE AND DEATH by Larry I. Palmer. Westport, CT: Praeger, 2000. 160 pages. Cloth $39.95. ISBN 0-275-96681-X.

Reviewed by Joseph Reisert, Department of Government, Colby College.

Medical researchers have, for some time now, been far quicker at making discoveries and devising new treatments than the rest of us have been at finding the wisdom we require in order to make certain that the scientists use their newly-discovered knowledge well. As a consequence, individuals, judges, legislators, and other public officials have found themselves playing catch up, struggling to devise humane and decent responses to the hard moral and legal dilemmas these new technologies create. Such problems arise with particular acuity at the beginnings of life and near life's end, when human beings are at their most fragile, most dependent, and most vulnerable.

Although its main focus is the question of physician-assisted suicide, as its title indicates Larry Palmer's book ENDINGS AND BEGINNINGS examines a number of the contemporary controversies regarding the beginnings and ending of human life. A liberal who favors the existence of a constitutional right to abortion, Palmer nevertheless maintains that the Supreme Court rightly declined to create a constitutional "right to die" in WASHINGTON v. GLUCKSBERG (1997) and VACCO v. QUILL (1997), suggesting that legislatures are the appropriate institution to decide whether, and under what circumstances, individuals should receive physicians' assistance in killing themselves. Palmer agrees with the Court's deference to the political process. He maintains that "the rights view of the relationship of medicine to law is simplistic," and that the language of rights should, in this area at least, be supplanted by a more subtle discourse that will only flourish if the Supreme Court does not pre-empt public debate by settling the issue prematurely.

Palmer examines the issue of physician-assisted suicide through what he calls an "institutional analysis" of medicine, law, the family, and some of the other institutions that constitute our society. Unfortunately, Palmer does not adequately explain what he means by institutional analysis or make clear to the reader the method by which such an analysis would proceed. This oversight considerably weakens the force of Palmer's argument and tends to obscure the organizing principles of his discussion. These shortcomings are all the more unfortunate because Palmer's approach shows signs of great promise.

The method of institutional analysis is most clearly exhibited in the first chapter of ENDINGS AND BEGINNINGS, which examines the practice of medical research and the evolution of the ideal of informed consent. Recounting the horrors of the Tuskegee Study of Untreated Syphilis in the Negro Male and the radiation exposure

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experiments performed on unwitting servicemen by the United States government, Palmer reminds us that medical research is an institutional process, carried on not by individual scientists working in isolation, but by teams of investigators, each carrying out part of a larger scheme. What the researchers in these dreadful experiments shared, according to Palmer, was "an assumption about 'medical progress'"- namely that the pursuit of medical and scientific knowledge is unquestionably good. This conviction that the researchers were doing good blinded them to the harms that they were inflicting in the course of their research and contributed to the failures of oversight that allowed such inhumane experiments to proceed for so long. Palmer concludes, "This is why institutional analysis is so critical. In the face of this powerful cultural alliance between science and medicine, legal institutions must intervene in ways that maximize the likelihood that individual notions of death, decay, and health will prevail over professional notions of medical progress."

In chapter two, Palmer turns his attention away from the institution of medicine to that of the family, formulating a "family centered and ideologically neutral" account of the responsibilities of courts with respect to the dilemmas posed by assisted reproductive technologies. It appears that the aspiration to ideological neutrality represents Palmer's response to the significant moral disagreement about the propriety of various reproductive technologies and the unlikelihood that that disagreement will abate anytime soon. Lawmakers and judges should take their bearings, he suggests, not from the partisan views of those who favor or oppose specific reproductive techniques, but by examining the nature of the family as an institution. Although recognizing the role of the law in establishing the rights and responsibilities of family members to one another, Palmer notes the multiplicity of forms family relationships actually do take in a pluralistic society and concludes that the distinguishing feature of the family as an institution is that it is constituted by the freely chosen intimate relationships among those who comprise any given family. Although he insists that the law must take care to define and enforce the responsibilities of parents (i.e., whoever has assumed "parental" duties) to the children for whom that have assumed that responsibility, he concludes that the law should generally support the ability of individuals to form family relationships of their own choosing.

In the next six chapters, Palmer presents his analysis of the problem of physician assisted suicide. He begins in chapter three by distinguishing the case of abortion from that of assisted suicide, arguing that a constitutional "right to die" cannot be inferred either from the joint opinion of Justices Souter, Kennedy, and O'Connor in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992) or from Chief Justice Rehnquist's majority opinion in CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990). It appears from the account in this chapter that abortion is properly addressed by the Court while assisted suicide is left to legislatures because women must be left free to decide for themselves what conception of femininity, of marriage, and of the family they wish to adopt. This is why he concludes that, "our larger covenant as a community grants to a woman who becomes pregnant the authority to decide whether she can be a (good) mother to the human entity growing within her body."

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Chapters four and five examine the very different conceptions of physicians' duties towards the chronically and terminally ill held by Dr. Jack Kevorkian and Dr. Timothy Quill. Palmer rightly perceives that Dr. Kevorkian's approach subordinates patients' conceptions of their own welfare to physicians' scientific judgment of what is best for society. He is more sympathetic to Dr. Quill's vision of the physician as the patient's friend and as "midwife" to the dying process. Nevertheless, Palmer argues against Dr. Quill that the physician who would view himself as the patient's friend misunderstands the reality of the powerful influence physicians wield in virtue of their role in the institutional delivery of medical treatment. Against Kevorkian and Quill, who both regard the physician's primary duty as relief of suffering, Palmer insists that physicians must exhibit greater deference to their patients' own judgments about the value of their suffering and, therefore, about when physicians ought to try to preserve life rather than to facilitate a painless death.

Chapter six returns to the Court's recent assisted suicide decisions. He argues that legislators who deliberate about assisted suicide should take their bearings not from the Court's opinion in GLUCKSBERG, in which the Court rejected the claim that Washington's prohibition of assisted suicide violated the Fourteenth Amendment's guarantee of due process, but rather from the various opinions in the equal protection case of VACCO v. QUILL. Chapter seven argues that the State legislatures should follow legalize physician assisted suicide; and chapter eight concludes the book by examining the specific obligations of both physicians and their patients.

It appears from the virtually complete absence of moral argumentation from ENDINGS AND BEGINNINGS that institutional analysis is intended as an alternative to moral argumentation, at least with regards to issues where there is such widespread disagreement as there is about the nature of the family or what it would mean to die well. Rather than evaluate normative arguments for this or that conception of the family, Palmer argues that the institution of the family is based on the voluntary creation of intimate relationships. This institutional conclusion seems to ground Palmer's general commitment to the liberal ideal announced by the three authors of the joint opinion in CASEY, that "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Although he does not himself quote this statement, presumably because it figures so prominently in Ronald Dworkin's argument for a constitutional right to assisted suicide, this remark does accurately characterize the general spirit of Palmer's own view, "Neither medicine nor law can provide meaningful lives or graceful deaths," he writes, "but these social systems can provide choices that affirm for individuals who they are. It is within this matrix of choice that beginnings as well as endings have value for each of us, as well as for our society."

Palmer's lack of clarity about the methodology of institutional analysis proves particularly troublesome just at this point. Is the institution of the family to be understood in the way he suggests because his account would be universally acceptable? If that is the hope, it should be said that a great many of our fellow citizens would reject Palmer's account out of hand. Is his account of the institution of the family the product of some kind of objective sociological analysis? Or is it formulated on the basis of some kind of functional analysis? An account of the family resented in terms of what families are

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good for might well proceed along the lines Palmer envisions (although it might not), but such an argument would have to be constructed in forthrightly normative terms. But to do so would be to give up on the aspiration to ideological neutrality with which he begins.

If we accept -- as a great many of our fellow citizens do not -- Palmer's (and Ronald Dworkin's) view that individuals are to have as much liberty as possible to define for themselves the meaning of their own lives, why, then should legislatures have the right to forbid individuals from deciding for themselves that their lives would best be ended by taking some physician-prescribed life-ending drugs? Here, Palmer is on rather firmer ground. His claim seems to be that, given what we know about the institution of modern medicine, to create a constitutional "right to die" would be to confer too much power upon physicians to influence patients at a time in their lives when those patients are most vulnerable. Also, Palmer has made a very interesting and important observation about the nature of that vulnerability: the patient is not only physically vulnerable, but morally vulnerable. In a diverse society, patients are liable to have a range of different views about what makes their own lives worth living. In contrast, the training and institutional role of physicians inculcates a particular, partisan conception of life's meaning (namely, that suffering is unqualifiedly bad). Were the law to confer even more power upon physicians (by licensing them to prescribe suicide drugs to their patients) the patients' own moral views would be in danger of being overwhelmed by the physicians' professional viewpoint. In short, a right to die would not enhance the autonomy of patients; it would, rather, diminish it.

Palmer's decision to eschew any discussion of morality prevents him from developing this insight to its logical conclusion, however. The physicians, as he presents them, are best understood as acting in terms of technical and instrumental rationality. They are glorified auto mechanics, whose goal is to keep the body's machine in good working order for as long as possible and then to shut it down quietly and painlessly. However, the rest of us, who are presumably trying to live well appear to be irrational: from the "institutional" perspective Palmer adopts, our moral values appear, not as the product of practically reasoned deliberation, but of arbitrary choice.

Palmer rightly observes that the "debate over physician-assisted suicide has illustrated that we cannot deal with death without talking about life." This is absolutely correct, and Palmer has done us a service in showing how radically we will need to re-think old understandings about the relationships between patients and their physicians. We do need to talk-and, more to the point, to think-about how to live, both as individuals and as a society. However, that is not just the task of politics or of law; it is the task of philosophy.

REFERENCES:

CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, 497 U.S. 261 (1990).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY 505 U.S. 833 (1992).

VACCO v. QUILL, 521 U.S. 793 (1997).

WASHINGTON v. GLUCKSBERG, 521 U.S. 702 (1997).


Copyright 2000 by the author