Rediscovering Inalienable Rights

Originally Published in Ethics & Medics, May 1999, at 1 (publication of the National Catholic Bioethics Center, Boston MA)

On December 16, 1997, Pope John Paul II welcomed Lindy Boggs, the new United States Ambassador to the Holy See, with these words: "[T]he continuing success of American democracy depends on the degree to which each new generation, native-born and immigrant, makes its own the moral truths on which the Founding Fathers staked the future of your republic . . . . The United States of America was founded on the conviction that an inalienable right to life was a self-evident moral truth, fidelity to which was a primary criterion of social justice." In light of the intensifying debate over the legalization of assisted suicide, how can our generation "make its own" the principles of the Declaration of Independence, particularly as applied to the assisted suicide debate?

One obvious way is through the conversion of our culture to a theological worldview that acknowledges God’s dominion over our lives. Yet, shy of such a conversion, we must appeal to principles and beliefs that a secularized constituency can appreciate. In an interview published in the September 25, 1998, issue of Commonweal, philosopher John Rawls asserted that the debate over whether to legalize assisted suicide could only be resolved by recourse to what he calls "public reason". Those opposed to the enactment of laws permitting suicide assistance should state their case "not just by speculating about God’s wrath or the afterlife, but by talking about what they see as assisted suicide’s potential injustices." Public policy arguments must appeal to non-sectarian considerations of what is just and unjust.

Does our society subscribe to any understanding of injustice that is at all receptive to an inalienable rights argument against the legalization of assisted suicide? I believe it does, and the best expression of the relevant view comes from none other than Jack Kevorkian.

In a speech before the National Press Club on July 29, 1996, Kevorkian summed up the philosophy that he and other assisted suicide advocates adhere to by asserting: "Do and say whatever you want to do and say at any time you want to do or say it, as long as you do not harm or threaten anybody else's person or property" [italics mine]. As indicated by the italicized language, even Kevorkian recognizes, at least in principle, that the harming of others against their will constitutes an injustice. Kevorkian’s statement provides an appropriate context for considering the Declaration of Independence and its appeal to inalienable rights.

The American patriots issued the Declaration of Independence in the face of threats both from the tyrannical incursions of the British Crown and from the acquiescence of the loyalists. The loyalists took no offense and complained of no violation of their rights, thus appearing to cede to the Crown an authority to engage in "taxation without representation" and other acts of tyranny. In addition, the patriots had to confront the claim that a people could renounce even such basic interests as the right to live and the right to enjoy liberty in exchange for the protection of a monarch. This posed a problem because the loyalists, like the patriots, were British colonial subjects. The lives and fortunes of both groups were linked inextricably because they shared the same legal status. The purported consent of one group thus threatened to override the objections of the other group to acts the latter deemed tyrannical.

Keeping these political and social circumstances of the American Revolution in mind, we can understand the Declaration of Independence as an appeal against a form of injustice cognizable even by Kevorkian et al. The patriots would be harmed against their will by the loyalists’ ostensibly self-regarding consent to tyranny. The consent of the loyalists threatened the patriots’ enjoyment of certain rights that were deemed fundamental not only because they served as a condition for all other rights, but also because their recognition defined the political and social status of an entire people. From this perspective, the "inalienable" aspect of the right to life, liberty, etc., is the protected status under the law enjoyed by the individuals who possesses such rights. The loyalists could not reject their protected legal status with respect to these rights without injuring the legal status of the patriots. The loyalists were not free to not be free because the resulting change in legal status harmed other colonists against their will.

The relationship in 1776 between the loyalists and the patriots is not much different from the relationship in 1999 between terminally ill Oregon residents who either support or oppose assisted suicide. Oregon law now permits persons diagnosed as terminally ill, with less than six months of life, to obtain a prescription for a lethal drug overdose for the purpose of committing suicide. Thus Oregon law considers all persons with terminal conditions to be candidates for assisted suicide whether or not they want to be eligible. Even though the assisted suicide law may serve the desires of terminally ill members of the Hemlock Society, the change in legal status for all persons with terminal conditions gives terminally ill members of the Right to Life, Not Dead Yet, and other assisted suicide opposition groups cause for complaint. For now Oregon law treats the right to life as an alienable interest for the terminally ill, thus downgrading the legal status of all those deemed eligible for suicide assistance.

Even if the commission of a suicide in individual cases might be considered self-regarding (ignoring the social consequences of suicide itself), the legalization of assisted suicide cannot be self-regarding because it necessarily involves a public act affecting the legal status of an entire class of persons. While Hemlock members may reject their status as persons with an inalienable right to life, they share that status with others and thus cannot unilaterally alter it through a change in the law without injuring others. Consequently, it is unjust for an individual or group to gain the freedom to receive lethal assistance by using the law to devalue the status of all similarly situated persons against their will.

In my opinion, this argument provides the best secular response to the claim that Oregon’s assisted suicide law concerns only individual freedom and victimless acts. The bumper sticker that taunts "If you don’t want assisted suicide, then you don’t have to do it" misses the point. By resorting to the law to eliminate for terminally ill persons the level of protection against self-killing heretofore provided to all persons, assisted suicide advocates move from the realm of personal autonomy into the arena of juridical mandates. Some assisted suicide advocates may respond that the involuntary destruction of another’s full-fledged legal status is necessary to achieve some utilitarian objective, and that the interests of Hemlock members outweigh the interests of Right to Life members. But this response shifts the case for assisted suicide entirely away from its libertarian premises and opens the gate through which the "right" to die becomes the duty to die.

The argument made here stops short of any assessment of philosophical or theological considerations, sticking strictly to the political ramifications of changing the law. Yet an ethics narrowed to the political and legal is an ethics without depth. I subscribe to religious and philosophical arguments against suicide itself because they point to deeper and to me undeniable realities about the meaning of life and the dignity of persons. We must continue to plumb the depths while at the same time we develop a language of persuasion for those at the shore.

The time is ripe to evaluate anew the inalienable rights doctrine in its entirety. My search for sources on the topic has uncovered to date few recent publications treating inalienable rights with any rigor. The most interesting sources found so far criticize rather than defend the claim of inalienable rights. The Holy Father is the only major public figure who seems to be taking inalienable rights seriously. We should follow his lead and again "make our own" the wisdom of our country’s founders as expressed in the Declaration of Independence.

Daniel Avila, Esq.

Associate Director for Public Policy

Massachusetts Catholic Conference