How Not to Argue against a Proposed Law

Yes, yes: it’s tedious and internecine, but it’s almost a year since I had a pop at Kevin Yuill’s book on assisted dying; how about an update?  Well, conveniently, there’s this, in which he tries “to convince my fellow liberal minded atheists to reconsider their support for legalized assisted dying”.  OK, then.  First up, this isn’t a pro-legalisation post: I’m much more interested in looking at the arguments presented in their own terms.  I think they’re bad; but that is to do with their form rather than their content.  Indeed, one of Yuill’s opening moves is something to which I’m sympathetic: in respect of Lord Falconer’s latest Bill to legalise assisted dying, he points out that

the chief sponsoring agency (Dignity in Dying) lamely differentiates between the dying (those with six months or less to live) and those with more time.
If the latter ingest poison in a room by themselves – well, that’s suicide.  But if those with less than six months take poison with the intent to end their lives, that is not suicide at all but <ahem> assisted dying. Nope, me neither.

I agree that the six-month time limit is arbitrary, and probably morally indefensible.  But…

*deep breath*

But note how Yuill botches even this point.  For one thing, he doesn’t say where DiD draws the distinction – there’s no link -and so checking it, and its context, is needlessly difficult at best.  But he’s trading on the idea that suicide and assisted dying are exclusive terms, as though being assisted to commit suicide isn’t a kind of assisted dying – which it is.  What the Bill does, in essence, is to make lawful something currently unlawful – to wit: assisting suicide – in certain specific circumstances.  Section 4 (5) is clear that noone would be permitted to administer life-ending treatment to another person, so we are clearly talking about suicide here, even if the person about to die has less than six months to live.  So when Yuill points out that “what is proposed in the Falconer Bill (which is based on the Oregon legislation), to use plain English, is suicide – and that is what this is all about”, everyone else in the world is perfectly entitled to nod vigorously and tell him that we already kind-of-know that.

You’ll notice that Yuill has conceded that Falconer’s Bill is modelled on the law as it stands in Oregon; and he concedes further that

[t]here is little evidence that, in Oregon, vulnerable people are dragged or pressured into assisted suicides, as is sometimes alleged by opponents of assisted suicide.

All the same:

But Oregon is not where to look if you want to see what an entire country – not a small part of it – looks like when voluntary death is accepted as a principle.

He thinks we should look to Holland or Belgium instead.

I’ll let that sink in for a moment.  When analysing how a proposed law modelled on the law in Oregon might work in practice, we should not look at what happens in Oregon.  We should look to jurisdictions with different laws, framed in a different legal tradition.  I can’t quite get my head around how one might make that kind of methodological faux pas.  Indeed, I’m not sure that it’s a faux pas at all – it could just as easily be a deliberate distortion.

For Yuill, though, the analogy with Holland and Belgium is important, because in his mind it demonstrates that the Falconer Bill would lead to us permitting assisted dying based on a broken heart.  I leave to one side whether or not a person should be allowed to seek assistance on that basis – this isn’t that kind of post.  Rather, I shall simply note that that would not be permitted by the Falconer Bill.  One wonders whether Yuill has actually read the Bill in question – it’s neither long nor complex – or just decided to write a critique on what he thinks it might say.  The laws in Holland and Belgium are quite different – Belgium’s law, in its earliest form, didn’t permit assisted suicide at all.  It’s hard to see how they’re relevant at all when it comes to the legal argument.

When it comes to the moral claims, of course, we don’t have to be bound by jurisdictional boundaries.  Maybe that makes the difference?  If the argument for legalisation is based on autonomy, and that is universally valuable, then we might have a moral reason to expect laws to permit assisted suicide for trivial reasons.  Except that… well, the arguments for assistance aren’t really based on autonomy – not straightforwardly, anyway, and not in the way that’d facilitate Yuill’s fantasies.  After all, autonomy doesn’t mean that you can demand anything.  To have the right to assistance in dying doesn’t mean that you can enforce that right; it’s more along the lines that the assistant has a permit to assist.  So the worry that

Anyone, on the basis of autonomy, ought to be able to end [their life] at any time with our help and approval

is simply false – and fairly obviously so.  First, the permit is not for any action by the suicide.  Second, and more important, autonomy does not mandate anyone else’s approval of my autonomous actions, much less their help.  Yuill is fighting a straw man here – and I’m not sure that he’s come out the better from the skirmish, to be honest.

One last thing: what about compassion?  Well:

Doctors should continue to despatch the few (and getting fewer as pain control improves) who suffer needlessly in the last hours or days of life. But compassion is not honouring, as this law will force us to do, suicidal wishes.
The truly compassionate […] respond to the suicidal with assurances that their lives – no matter how wretched they feel them to be and no matter how much time is left – continue to have value.

The problem with this last sentence is that, no matter what value others might assign to a life, cases of assisted suicide almost by definition only arise when the person who wants to die has set a certain value on his life and whether it’s worth keeping.  Suicide doesn’t even imply that the person who wants to die denies that his life has value – it could easily simply mean that avoiding or ending suffering is more desirable.  Reassure all you like, but it really makes no difference – unless Smith’s evaluation of Jones’ life is supposed to trump Jones’.  That’s a really strange thing for a professed libertarian to say, though – and I don’t think that you have to agree with my pervasive suspicion of libertarianism to accept that point.  As for the claim that anyone would be forced to honour suicidal wishes: we’ve just covered that.  No.  They.  Won’t.

And also… whoa there!  Doctors should continue to dispatch those who suffer needlessly?  Really?

Note how there’s no appeal to this being in accordance with the patient’s wishes here.  Maybe that’s a genuine oversight – but in a piece that’s ostensibly about, and arguing against, a law to allow Smith to help Jones kill himself if and only if Jones wishes, a statement that Smith may, and ought, to kill Jones anyway that makes no reference at all to Jones’ desires is quite astonishing as oversights go.  And if they should dispatch others, wouldn’t it make sense for it to be legal?  It’s strange to say that one might have an obligation to do something and yet rightly face prosecution for it.  But even putting that aside, to argue in favour of a version of euthanasia but against (legal) assisted suicide puts Yuill’s position quite close to the original Belgian one – which makes his invocation of Belgium as an example of all that’s wrong highly puzzling.

One might almost think that he hadn’t really thought about this at all.  In a sense, that’s a much more attractive interpretation than the thought that he had thought about it, and that this was the best he could come up with.