CHAPTER IV

BALANCING COMPETING RIGHTS IN

COMPULSORY MEDICAL TREATMENT

Introduction

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There is a widespread illusion that competent adults are

entirely free to seek or not to seek medical advice or treatment for any illness, and equally free to withdraw from a treatment at any time other than in the midst of a critical phase. The only exception is illness that poses a danger to others. . . . This, I believe, is the legal position here and generally in non-totalitarian societies.1

As the survey of blood transfusion cases demonstrates, this is not always the case. The legal situation is not clear cut. The writer quoted above did go on to admit that the moral and ethical issues in compulsory medical treatment are “complex.”2

One professor of social ethics claims that

There is now a consensus in the philosophic and medical communities that an individual has no moral obligation to undergo “extraordinary” medical treatment. . . . If the patient has no moral obligation to undergo extraordinary treatment--common though it might be in regular practice --neither has the physician any moral obligation to provide it, nor the judge to order it!3

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1Hans Jonas, “The Right to Die,” Hastings Center Report 8 (August 1978): 32.

2Ib’d

3John J. Paris, “Forced Medication: By Whose Right?” America, 15 November 1975, 325.

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Is there such a consensus of opinion, and how is it to be applied to the blood transfusion cases? What are the ethical issues, and how are the various competing interests and rights to be weighed? Macklin rightly says:

This is an issue at the intersection of law and morality--one in which the courts themselves have rendered conflicting decisions and have looked to moral principles for guidance.4

What guidance is there from Christian ethics? Attention will first be devoted to the rights of the individual and then to the rights of others. Some balancing considerations and limitations on paternalism arising out of a whole-person approach to treatment will be surveyed.

Rights of the Individual

Autonomy

Some statements of ethics in the medical discipline speak of the patient’s right to refuse treatment. A Patient’s Bill of Rights from the American Hospital Association (1973) affirms that “The patient has the right to refuse treatment to the extent permitted by law, and to be informed of the medical consequences of his action.”5 One basis for

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4Ruth Macklin, “Consent, Coercion, and Conflicts of Rights,” Perspectives in Biology and Medicine 20 (Spring 1977): 360.

5Encyclopedia of Bioethics, 1978 ed., s.v. “A Patient’s Bill of Rights.” The right is also acknowledged in the American Hospital Association’s Statement on the Right of the Patient to Refuse Treatment (9 May 1973), but this document is primarily concerned with legal protection of the medical profession through obtaining written refusals. Andrew B. Roth, and Robert Andrew Wild, “When the Patient Refuses Treatment: Some Observations and Proposals for Handling the Difficult Case,” Saint Louis University Law Journal 23 (1979): 431-32.

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this right is the concept of autonomy or the right to the integrity of one’s own body. The cause of much of the conflict present in bioethics is a struggle between autonomy and beneficence. The current emphasis on autonomy arose in the 1970s after paternalism had reigned unchallenged for centuries,6 although autonomy is not a novel judicial doctrine.7

Autonomy helps insure that the individual will not be treated as a means but as an end. It recognizes a person’s standing in the community and one’s right to pursue his own

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6Robert M. Veatch, “Is Autonomy an Outmoded Value?” Hastings Center Report 14 (October 1984): 38-40; Robert S. Morison, “The Biological Limits on Autonomy,” Hastings Center Report 14 (October 1984): 43-45.

7 Paris, “Compulsory Medical Treatment,” 29. Paris quotes an 1891 decision (Union Pacific Ry. v. Bodsford, 141 U.S. 250, 251) which says, “No right is held more sacred, or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference by others, unless by clear and unquestionable authority of law” (Ibid., 29). Applying autonomy to medical treatment, a 1960 decision (Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093, 1104) declared that “Each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment” (Ibid.). Similarly in 1962 another decision (Woods v. Brumlop, 71 N.M. 221, 227, 337 P.2d 520,524) stated that “An adult person, if he be of sound mind, is considered to have the right to determine for himself whether a recommended treatment or surgery shall be performed upon him, and to have the right even to expressly prohibit lifesaving surgery or other medical treatment” (Ibid.).

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ends. Too much emphasis upon autonomy, though, has drawn criticism from some authors like Callahan. It has been 8 called a moral good rather than a moral obsession. In society autonomy should not be the central value or the sole goal in medical treatment. Callahan derives this limitation on autonomy from the principle of human life in community. If autonomy reigns, then morality can become subjective and relativistic with no communal ends:

It buys our freedom to be ourselves, and to be free of undue influence by others, at too high a price. . It elevates isolation and separation as the necessary starting point of human commitments. . . . It will inevitably diminish the sense of obligation that others may feel toward us, and shrivel our sense of obligation toward others.9

Autonomy can be abused by the individual to justify selfishness and by society to condone indifference. One critic of an overemphasis upon autonomy concluded: “An ethic based on maximizing individual autonomy is grotesquely inadequate to the task.”10

Should autonomy be compromised by illness? Illness itself might represent a state of diminished autonomy which

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8Daniel Callahan, “Autonomy: A Moral Good, Not a Moral Obsession,” Hastings Center Report 14 (October 1984): 40.

9lbid., 41. Also see J. Robert Nelson, “Live and Let Live . . . and Die When You Must,” Perkins Journal 39 (January 1986): 9.

10Morison, “Biological Limits,” 48.

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could justify a certain degree of paternalism.11 A lack of knowledge on the part of a patient impedes a valid self-assessment of one’s situation. Social and cultural expectations strongly encourage a patient to trust the competence of an physician, letting the doctor choose the best treatment. Fear, guilt, and depression can also compromise a patient’s autonomy.12 In general if a patient can be informed properly of the alternatives, noninterference is the best course for the physician to follow in order to honor autonomy. If there are serious constraints on the patient’s autonomy, noninterference is not the best course. In treating the total person it is recognized that a feeling of a loss of control can be very destructive to a patient; therefore, a physician should attempt to return as much control as possible to the patient.13

Miller analyzes autonomy under four different categories.14 First, autonomy can be free action. This means that a refusal of treatment is a voluntary and intentional action. The patient is not to be coerced or under

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11Mark S. Komrad, “A Defense of Medical Paternalism: Maximising Patient’s Autonomy,” Journal of Medical Ethics 9 (March 1983): 38-44.

12Terrence F. Ackerman, “Why Doctors Should Intervene,” Hastings Center Report 12 (August 1982): 14-15.

13Ibid, 16.

14Bruce L. Miller, “Autonomy & the Refusal of Lifesaving Treatment,” Hastings Center Report 11 (August 1981): 24-25.

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undue influence. A patient who gives consent to treatment would be acting within this category of autonomy. Children, incompetent patients, or patients in extremis would be exceptions here. Most of the adults who refused a blood transfusion in the survey in chapter three, though, were acting freely--unless one wants to judge the social pressure exerted by a sect like the Witnesses as coercion.

Second, autonomy can be defined as authenticity. Are the actions consistent with the patient’s values, beliefs, and life plans? Are they consistent with the patient’s character? Most of the competent Jehovah’s Witnesses studied in chapter three would fulfill this qualification. Many of them had been Witnesses for years and were strong in their convictions. Others hinted at being caught in a dilemma. They could not consent, but the judge could order a transfusion and provide them with a way of living without going against their own consciences.

Third, autonomy can be classified as effective deliberation. If the action is not impulsive and the patient is informed of the risks and the alternatives, it fulfills the criteria of effective deliberation. Adult Witnesses who refuse a transfusion seem well aware of the risks involved. Their refusal is usually conditioned and a choice already made by them before a medical emergency arises.

Fourth, autonomy can be defined as moral reflection. This is similar to effective deliberation, but values are the

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emphasis. Here one has reflected on values and accepted them as one’s own. Applying this in a given situation is difficult and involves some judgment of the beliefs of another. It would be easy for one who disagrees with the Witnesses to claim that they have not made adequate moral reflection on the problem but have merely accepted a dogma in order to be socially integrated into a religious group. Miller admits to difficulty in applying this to the Witnesses. They are not regarded as lunatics by society, though, and there is a fair degree of social acceptance for their beliefs.15

Miller believes a recognition of the various senses of autonomy will alleviate many problems between autonomy and paternalism inherent in compulsory medical treatment situations.16 If a refusal of treatment is not a free action, it is not autonomous. If it is free but not authentic or based on effective deliberation, it is the physician’s responsibility to assist the patient in making responsible deliberation or to reach an authentic decision if possible. Can a refusal of lifesaving treatment be justified if an individual exhibits all four senses of autonomy in his refusal of the treatment? Miller notes the alternatives but provides no answer.17

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15Ibid, 28.

16Ibid., 27-28.

17 The alternatives are regarding the patient as incompetent, viewing treatment as justified paternalism, or respecting the refusal as a fully autonomous decision. Ibid., 28.

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In legal literature autonomy is subsumed under the larger category of privacy. The right to privacy is considered a fundamental right. It is not considered absolute since it can be restricted by some compelling state interest. The right of privacy or the right to be let alone includes autonomy from regulation of certain acts such as abortion of the use of contraceptives.18 Since the transfusion issue is one of refusal of treatment, privacy as freedom from intrusion would be more applicable. It is more a case of privacy from outside invasion than privacy from outside restrictions. Laws against trespass or assault are the broadest protection and How, a Canadian lawyer and a Witness, used to describe compulsory transfusions as rape. He changed his terminology due to negative reactions from others.19

The existence of liability for physicians for rendering treatment in non-emergency situations without consent or authorization testifies to the right of privacy. Even if the treatment is rendered with a great degree of skill or if it benefits the patient, neither argument is a legitimate defense. Medical treatment which goes beyond the original

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18Kent Greenawalt, “Privacy and Its Legal Protections,” Hastings Center Studies 2 (September 1974): 45-47.

19 In one case the husband of a woman who was compelled to receive a transfusion reported that after one month his wife was still distraught. For her the trauma was “as if she had been tied to a bed and gang raped by the doctors and the judge” (Interview with Arlen Knight, 4 August 1975; cited by Paris, “Compulsory Medical Treatment,” 28).

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authorization to different treatment or more extensive treatment results in tort liability. Unauthorized medical treatment can be viewed as battery according to the law.20

Privacy can be violated by the distribution of information one deems personal. Having certain activities observed by others or having to observe certain actions of others can involve a violation of privacy. A person’s privacy can be invaded by the presence of unwanted persons or noise.21 Determination of how close is “too close” is difficult. For privacy, autonomy, or self-determination to be used as a basis for refusing medical treatment, the presence of other considerations such as the burdensomeness of treatment or the uselessness of treatment is sometimes essential.22 Radical surgery would be more of an invasion than a minor technique like a blood transfusion. These considerations help determine the degree of invasion of privacy one suffers.

For the present study there should be little uncertainty. A compulsory transfusion is an invasion of privacy.

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20Kenney F. Hegland, “Unauthorized Rendition of Lifesaving Medical Treatment,” California Law Review 53 (August 1965): 862-63.

21Warren T. Reich, ed. Encyclopedia of Bioethics, vol. 3 (New York: The Free Press, 1978), s.v. “Privacy,” by Kent Greenawalt.

22 Richard A. McCormick and Robert Veatch, “The Preservation of Life and Self-Determination,” Theological Studies 41 (June 1980): 393.

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It involves the penetration into one’s body with a foreign object and the injection of a substance into the body. While this seems insignificant to those unopposed to transfusions, in the mind of the Witnesses it is an act which, if done voluntarily, is a gross sin that can result in a loss of fellowship with other Witnesses and with God. Witnesses frequently feel invaded, molested, and betrayed by compulsory transfusions.

The extent to which a compulsory blood transfusion might violate the right of autonomy or privacy is aided by reference to euthanasia and the categories of ordinary versus extraordinary treatment. Euthanasia and the right to die are broader topics. Normal and unusual treatment are not a major argument in the debate over transfusions, but these categories can be helpful in weighing the privacy arguments. Sometimes it is assumed that a transfusion is extraordinary treatment and that a patient ought to have a right to refuse such treatment. The distinctions between ordinary and extraordinary are unclear, however, and their application is disputed.23 Although the validity of the distinctions is debated, they are neither nonsense nor useless. One distinction defines whatever is necessary to

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23 The following distinctions for determining ordinary versus extraordinary treatment are taken from Warren T. Reich, ed. Encyclopedia of Bioethics, vol. 1 (New York: The Free Press, 1978), s.v. “Death and Dying: Euthanasia and Sustaining Life: Ethical Views,” by Sissela Bok.

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prolong life as ordinary and whatever merely prolongs the dying process as extraordinary. By this distinction a transfusion would be ordinary in most cases. This distinction is better suited for a right to die or euthanasia situation. A second distinction relates ordinary treatment to food and shelter. The medical profession would place a transfusion in the extraordinary category by this definition. A Witness, though, equates a transfusion with eating food and to be consistent would have to call it ordinary. A third distinction relates to circumstances surrounding the treatment. Is there any overwhelming reason why the treatment should not be taken? Would it put the patient in intolerable pain or require resources that are very expensive or difficult to obtain? A physician would see no reason for refusing treatment on these grounds, so a transfusion would be ordinary. To a Witness, though, the mental agony of the act would be circumstantial justification to define the transfusion as extraordinary.

Are blood transfusions ordinary or extraordinary treatment? The answer depends upon the method of distinction and upon who is making the definition. Some hold that what a patient wants is significant in rendering circumstances ordinary or extraordinary. While a blood transfusion might be ordinary treatment to some, to a Witness who has a strong religious compulsion against a transfusion it would be extraordinary treatment. A holistic method of treatment

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which treats the whole person would most likely reach this conclusion.

O’Donnell, a Catholic ethicist, uses the distinction between ordinary and extraordinary to delineate proper action in cases involving Jehovah’s Witnesses. For a competent adult who refuses a transfusion, O’Donnell considers the transfusion as extraordinary treatment due to the subjective abhorrence, antipathy, repugnance, and aversion the Witnesses have to its use. Since it is extraordinary treatment, the “patient has a right to refuse it, and no matter what the consequences to the patient may be, that right must be respected.”24 In the case of an infant the transfusion is only ordinary treatment. The parents who refuse consent may have a personal abhorrence to the transfusion, but the infant has no such feeling. In the situation of a pregnant Witness who refuses a transfusion, O’Donnell is not adamant, but leans toward not compelling treatment. He believes the spiritual welfare of the mother and the common good for society which would be endangered by invasion of a person contrary to her conscience outweighs the individual good of the unborn child.25

Witnesses routinely refuse transfusions, but they do not use violence or force in their refusal. In a very

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24 Thomas J. O’Donnell, Medicine And Christian Morality (New York: Alba House, 1976), 59.

25Ibid., 61.

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interesting panel discussion on blood transfusions and the Witnesses, one physician, Dr. Ravdin, commented that

to give him a transfusion one would actually have to face the prospect of anesthetizing this man or of holding him down in some way. Actually, it is almost physically impossible to give a transfusion unless it is wanted.26

Although the Witnesses are not prone to refuse in such a way that physical force is necessary to give transfusions, the possibility highlights the invasion of privacy that a compulsory transfusion entails.

Freedom of Religion

Many situations of compulsory medical treatment do not go beyond the rights of autonomy and privacy. In many of the transfusion cases involving the Witnesses, the right of privacy was the overriding concern with inadequate attention given to the problem of the free exercise of religion. According to the tradition of constitutional law in this country, freedom of religion should be equally important. The exalted place that religion holds in constitutional law means that it might even be a more exalted right than an implied right like privacy.

Liberty is extolled in the beautiful words of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator

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26William T. Fitts, Jr. and Marshall J. Orloff, “Blood Transfusion and Jehovah’s Witnesses,” Surgery, Gynecology & Obstetrics 108 (April 1959): 504.

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with certain unalienable Rights; that among these, are Life, Liberty, and the pursuit of Happiness.

Religious liberty is not merely a political issue. There is a theology of religious freedom too.27 A basis for the free exercise of religion can be traced back to a Creator God. Freedom of religion should occupy a special place in Christian thought. It is unfortunate that in the name of Christ all forms of injustice and intolerance have been perpetrated throughout history. Some of the most intolerant of men have justified their intolerance on protection of the gospel of Christ. The exclusiveness of Christian claims may have contributed to the hesitancy of Christians to defend religious liberty. If there is only one truth (Jn. 14:6),

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27Thorwald Lorenzen, “The Theological Basis for Religious Liberty: A Christian Perspective,” Journal of Church and State 21 (Autumn 1979): 419, 427-29. On religious liberty also see C. Welton Gaddy, “Religious Liberty: Renewing Our Commitment,” Journal of Church and State 20 (Winter 1978): 5-12; “The World Council of Churches On Religious Liberty,” Journal of Church and State 5 (November 1963): 243-45; William Lee Miller, “The Principle of Religious Liberty,” Journal of Church and State 6 (Winter 1964): 85-89; Franklin Hamlin Littell, “The Basis of Religious Liberty in Christian Belief,” Journal of Church and State 6 (Spring 1964): 132-46; Winthrop S. Hudson, “The Theological Basis For Religious Freedom,” Journal of Church and State 3 (November 1961): 130-36; James E. Wood, Jr., “Theological and Historical Foundations of Religious Liberty,” Journal of Church and State 15 (Spring 1973): 241-58; James E. Wood, Jr., “Religious Liberty in Ecumenical and International Perspective,” Journal of Church and State 10 (Autumn 1968): 421-36; Niels H. Soe, “The Theological Basis of Religious Liberty,” The Ecumenical Review 11 (October 1958): 36-42; Amos N. Wilder, “Eleutheria in the New Testament and Religious Liberty,” The Ecumenical Review 13 (July 1961): 409-20; James E. Wood, Jr., “A Biblical View of Religious Liberty,” The Ecumenical Review 30 (January 1978): 32-41; George W. Forell, “Christian Freedom and Religious Liberty,” The Lutheran Quarterly 16 (November 1964): 327-42; Jose Maria Gonzalez Ruiz, “Religious Liberty in the New Testament,” Foundations 9 (January-March 1966): 109-17; M. A. C. Warren, “The Basis of Religious Liberty,” Frontier 4 (Winter 1963): 281-82; M. Searle Bates, Religious Liberty: An Inquiry (New York: International Missionary Council, 1945), 418-32; A. F. Carrillo De Albornoz, The Basis of Religious Liberty (New York: Association Press, 1963).

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then should error be granted equal freedom and rights? Is truth made completely relative by religious freedom?

A theological basis for religious freedom can begin with a recognition of the dignity of man as a creature of God. All persons are equal in God’s sight, created in his image. It is God’s wish that all might be saved (1 Tim. 2:4; Jn. 3:16). God’s love is not limited to a select few. The incarnation of Christ gives man and human nature a dignity, due to the grace of God, which other philosophies like Gnosticism deny. “This equality of all men implies that granting the right of religious liberty to some means granting it to all.”28

A recognition of the finitude of man ought to promote respect for religious liberty. Humility demands that each person be sensitive to his own limited knowledge and open to insights that might be gained from others, in particular those of a different religious persuasion. The fallibility of human wisdom ought to make all persons aware that their knowledge does not transcend all truth. All persons should be granted freedom of expression of their religious ideas and

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28Ibid, 421.

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convictions, since they may have an awareness of elements of truth others have overlooked. Denial of religious freedom insults the dignity of all human beings and is evidence of the sin of pride in the human race.

The nature of God and the gospel also argue for religious liberty. God is a God of freedom. The offer of God to a mankind enslaved in sin is freedom. The faith to which God calls man is a faith that requires outward, visible expression of religious devotion in a lifestyle. Faith must issue forth in confession, ministry, action, and works or it is incomplete and dead (Jas. 2:14-26; Eph. 2:10). Religious experience is more than an internal, private relationship with God. Religious liberty is a recognition of the essence and character of religious faith. One must be allowed to act out faith for it to be real.

For faith to be real, it must be sincere.29 A coerced faith has the taint of insincerity in it. God loves a cheerful giver. A proxy faith is not satisfactory to God. Each person is responsible before God as an individual, so the constraining of another s conscience is a usurpation of the place of God as Lord over the hearts of men. For faith

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29Lorenzen writes, “Any use of force or pressure --either political, economic, or psychological--to attain religious adherence is a misunderstanding of faith. Faith can only originate and grow in an atmosphere of voluntary response. . . . Consequently the Christian cannot deny to others what God grants to all, i.e., the liberty to believe or not to believe” (Ibid., 423).

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to be truly voluntary, then, an environment of religious freedom is desirable. Salvation is a gift of God (Rom. 6:23; Eph. 2:8-9). God is the sole giver of that gift. No one should usurp the role of God as giver by attempting to force faith upon another. Neither should the process of salvation as receiving the gift of God be turned into coercion by force or pressure.

In the free church tradition the nature of the church can best be expressed in an atmosphere of religious freedom. The church is a voluntary association of men and women. One is not born into the church. One chooses to belong, a choice which must be voluntary in an environment of liberty to be valid. Coercion, whether mental or physical, is antithetical to the voluntary nature of the church. Even those who hold to different views on the voluntary nature of mans will still adhere to the rightness of tolerance and freedom.30

Finally, religious freedom can be rooted in the Christian doctrine of civil government. Above all human government is the kingdom of God. Allegiance of men to civil government must take a secondary role to mens allegiance to God (Acts 4:19; 5:29; Rev. 11:15; Jn. 19:11; Rom. 13:1-7). When the ultimate sovereignty of God is combined with the

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30For example see Loraine Boettner, The Reformed Doctrine of Predestination (Philadephia: Presbyterian and Reformed Publishing Company, 1932), 353-57; and especially idem, Roman Catholicism (Philadelphia: Presbyterian and Reformed Publishing Company, 1962), 416-19.

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view of a limited state where the rights of those governing are granted by the consent of those governed, then religious freedom is essential. Religious liberty is justified best and understood more clearly if the rationale for it begins with theology, not with political justifications. While an excellent case can be made for the benefits of religious freedom for the health of the religious life of people, this is secondary. The primary justification for the free exercise of religion is Christian doctrine. When those divested of power support religious liberty due to expediency or when those possessing patronage oppose religious freedom due to expediency, they are both trading the theological basis of free exercise of religion for a pragmatic, utilitarian consideration.

All cases of compulsory medical treatment are not related to the freedom of religion, but this is the central issue for a Jehovah’s Witness. A person can remain a Witness if a blood transfusion is forced upon him, but only if he uses all possible means at his disposal, short of violence, to halt the order. Just as it is possible to remain a Mormon without practicing polygamy, it is possible to remain a Witness after a blood transfusion. Proper use of blood is not the central tenet of Witness theology. Their millennial doctrines still occupy center stage. Yet, few months go by between issues of Awake! or Watchtower when no mention is made of the question of blood. It is a major item of faith.

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Disfellowship from other Witnesses and separation from God are the penalties for consenting to a blood transfusion as chapter one showed.

Undoubtedly the Witnesses have many weak members with low religious motivation who do not hold strong convictions about blood transfusions. One survey, though, shows that the bulk of a typical Witness congregation is “adamant in their refusal to accept all blood products.”31 Fifty-nine questionnaires were answered out of seventy that were distributed. The seventy constituted about 85 percent of the adults attending any given service of this Denver congregation. Nineteen percent had been members from six to ten years while 42 percent had been members for ten years or more. The responses indicated that these Witnesses were “active partakers in the health care system.”32

When asked, “If you or your family member faced certain death from sudden bleeding, would you consent to blood transfusion?” none of the fifty-nine responded “Yes” or “Probably yes.” Only one responded “Probably no,” and all others said, “No.” When asked, “If you or your family member had the option of traditional surgery vs a more risky ‘bloodless surgery, which would you accept?” every respondent

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311arry J. Findley and Paul M. Redstone, “Blood Transfusion in Adult Jehovah’s Witnesses: A Case Study of One Congregation,” Archives of Internal Medicine 142 (March 1982): 607.

32Ibid, 606.

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opted for bloodless surgery.33 Confidentiality was guaranteed to the individuals participating in this survey. If the results are typical, they demonstrate how strongly the Witnesses hold to their teachings against blood transfusions.

This strength of belief adds weight to the centrality argument which is so important in the legal analysis of a religious tenet. Because the belief about transfusions is so important, compelling reasons must be present in order for society to override this religious belief. The unanimity among Witnesses has another effect, though. The danger of peer pressure is undoubtedly present. Caution should be taken by physicians or court representatives interviewing a Witness. Privacy and confidentiality ought to be guaranteed as much as possible. One may find that an individual Witness will not consent due to peer pressure but would gladly accept a transfusion ordered by a court in order to save his life.

When a Witness is unable to consent due to his or her convictions, relief is sometimes present if the court takes responsibility and orders the transfusion. In one situation a patient and his wife had refused blood. An operation was performed anyway, and the surgeon did not anticipate any need for a transfusion. The patient began to hemorrhage severely, and only an immediate transfusion would save him. A judge rushed to the hospital and ordered the lifesaving

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33Ibid., 607.

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transfusion. In the retelling of the events, he recorded that a “grateful wife later acknowledged her relief and gratitude to the tired surgeon. Her husband’s life had been spared and her religious conscience was still clear.”34 Some of the cases in chapter three turned on this point. A Witness would not consent but would not refuse a transfusion ordered by the court. Some Witnesses even hinted to the judge that this was an acceptable alternative. As was shown in chapter one, the Watchtower Society frowns very much on this behavior and will discipline those found guilty of it.

If it is found that a Witness feels trapped into refusing a transfusion but hopes for a court order that will save his life, then the amount of infringement upon such a person’s religious belief is minimal. This is an attractive solution to the problem that the court has followed on occasion. The court orders the transfusion, thereby making itself guilty of any sin, according to Witness thought. Although the religious freedom of the individual Witness is violated, it is not destroyed. No personal sense of bodily violation will traumatize this type of Witness for weeks to come. Personal integrity has been maintained for all concerned--the Witnesses, the physicians, and the court.

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34Laurance T. Wren, “Status of the Law on Medical and Religious Conflicts in Blood Transfusions,” in Moral Problems in Medicine, ed. Samuel Gorovitz, et. al (Englewood Cliffs, New Jersey: Prentice-Hall, 1976), 235. This is a reprint from Arizona Medicine 24 (October 1967): 970-73.

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Witness thought has become sterner at this very point, because some Witnesses sought this way out of the dilemma, and it was publicized by legal literature.

Rights of Others

Prevention of Suicide

Occasionally society’s right to prevent suicide has been invoked as justification for compulsory medical treatment. The ethical basis for society’s attitude toward suicide has been argued for over two thousand years with little or no advancement in the arguments, but there has been a trend of opinion against penal sanctions.35 Suicide was tolerated by many Roman writers. Suicide by martyrdom was eagerly sought by some Christians, if that can be defined as suicide. In reaction to these excesses on the part of some Christians, Augustine condemned suicide as a violation of the commandment against murder.36 In Judaism Josephus was the most influential molder of thought against suicide.

Restrictions on burial rites of suicide victims have been common since the sixth century.37 Another deterrent was 38 the required forfeiture of property for suicide. Thomas Aquinas continued the condemnation of suicide in his

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35Glanville Williams, The Sanctity of Life and the Criminal Law (New York: Alfred A. Knopf, 1957), 248.

36Ibid., 252-55.

37 Ibid., 257-60.

38Ibid., 261-64.

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influential writings. Due to the writings of men like Donne, Hume, and Voltaire, though, sanctions against the body and the property of suicide victims were repealed, first in France and then in other European countries.39 With the rise of rationalism, these men eliminated theological arguments from the discussion of suicide. They viewed suicide as an illness rather than a moral problem. While suicide has been decriminalized, the use of reasonable force to prevent suicide remains a recognized privilege of society.40 Removal of sanctions for suicide are indicative of their inability to deter suicide rather than of society’s lower commitment to the sanctity of life.41

One of the arguments against suicide advanced by Aristotle, and then Aquinas, is the social argument.42 It claims that a person has no right to deprive society of his or her presence and activity. As a general rule, this argument will not apply in all situations. Sometimes the death of an individual for others is an honorable act for their benefit. Rather than abandoning an important social duty, one may be fulfilling it in the best way. In individual cases, though, suicide may be condemned due to the

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39Ibid., 265-66.

40Byrn, “Compulsory Lifesaving Treatment,” 16.

41”Compulscry Medical Treatment and the Free Exercise of Religion,” Indiana Law Journal 42 (Spring 1967): 400.

42Williams, Sanctity of Life, 264.

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negative effect it has on others, either due to subsequent neglect of responsibilities or negative emotional or economic impact upon others.43 This type of reasoning has been the most influential in the transfusion cases when the decision involved an adult with minor children, especially if the adult was the chief supporter of the children.

The major difficulty in using analogies with suicide to justify compulsory lifesaving medical treatment is that a refusal of such treatment is qualitatively different from suicide. Suicide can be defined as

a conscious act of self-induced annihilation, best understood as a multidimensional malaise in a needful individual who defines an issue for which the suicide is perceived as the best solution.44

The words “conscious act of . . . annihilation” are significant, since Durkheim’s nineteenth century non-legal definition of suicide has created confusion. His “objective” analysis of social phenomena would not take into account intent.45 However, a refusal of lifesaving medical treatment on religious grounds is very different from suicide. The result might be the same, but the intent is not.46 The

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43Ibid., 268-71.

44Edwin Shneidman, Definition of Suicide (New York: John Wiley & Sons, 1985), 203.

45Byrn, “Compulsory Lifesaving Treatment,” 17.

46Sandak attempted to clarify difficulties in determining “intent” by replacing it in definitions with the concept of “objective.” He concluded, “The destruction of ones life which results as a consequence of actions the objective of which is other than the destruction of one's existence cannot, under the proposed definition, be categorized as suicide.” Referring to the transfusion cases which concentrated on suicide, he commented, “Accordingly, treatment would not have been compelled by a court focusing its attention on the suicide-definitional problem because the allegation of attempted suicide would have been clearly refutable” (Lawrence R. Sandak, “Suicide and the Compulsion of Lifesaving Medical Procedures: An Analysis of the Refusal of Treatment Cases,” Brooklyn Law Review 44 [Winter 1978]: 313).

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Witnesses in all of the cases in this study wanted to live. Death was an unfortunate and unwelcome consequence of their actions, not its intended goal. Their motive was not to annihilate self but to respect what they perceived was Gods law. If their refusal of medical treatment was suicide, the death of all Christian martyrs and of Christ himself could be interpreted as suicide.

Similarly the words “act” and “self-induced” are crucial to the definition of suicide. Suicide is actively seeking one’s self-destruction. Refusal of medical treatment is a passive stance. Legal terminology frequently invokes the categories of misfeasance for suicide and nonfeasance for a refusal of lifesaving medical treatment.47 Rather than doing acts to harm themselves, the Witnesses had come to hospitals and placed themselves in the care of physicians in order to live. Refusals of blood transfusions, then, do not

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47For example, Hoover, “An Adult’s Right to Resist,” 574; “Compulsory Medical Treatment and the Free Exercise of Religion,” 396-97; Hegland, “Unauthorized Rendition,” 870. In general, Hegland’s analysis reaches opposite conclusions to the present study.

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seem to fit this definition of suicide.

Suicide is sometimes divided into three classes: justifiable, excusable, and culpable. The first two are defensible and carry little or no moral stigma. A father’s losing his life by dashing in front of an automobile to save his infant son would be a heroic and justifiable act that would bring him praise rather than condemnation. Excusable suicide is an accidental self-killing. Refusal of transfusions that leads to death does not clearly fit any of these categories, but it is closer to a justifiable suicide and unrelated to a culpable suicide. Thus one writer asks, “The question is whether or not a Jehovah’s Witness may justifiably save his spiritual being.”48

Another method of analysis by Beauchamp is very helpful. The more the following three conditions are present, the more likely society is to call an action suicide:

1. whether the death is intended by the agent;

2. whether an active means to death is selected;

3. whether a nonfatal condition is present (no terminal disease or mortal injury exists).49

The more these conditions are absent, the less inclined

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48Ibid 575.

49Tom L. Beauchamp, “Suicide,” in Matters of Life and Death, ed. Tom Regan (Philadelphia: Temple University Press, 1980), 73-74.

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society is to call an action suicide. Judged by these standards, a refusal of lifesaving blood transfusions by Jehovah’s Witnesses is not suicide. Their action is not done with the intent of dying. They are passive. Theirs is a refusal of treatment, not an active seeking of death. Finally, when a Witness dies from a lack of a transfusion, it is due to a mortal injury or health problem that required a transfusion. This is different from a person taking his life to escape public notice, a financial failure, or moral embarrassment.

Refusal of treatment cases which have compelled treatment based upon the analogy with suicide “have had to dismiss the criminal law’s traditional requirement of specific intent and to misstate the patient’s asserted claim as a right to choose to die.”50 The intent of suicide is death. It is a rejection of life. Refusal of treatment, however, can be made by one who wants desperately to live. An affirmation by society of a right to refuse treatment is not a condoning of a right to commit suicide. It is not a rejection of the sanctity of life by societal institutions, although the argument is sometimes made that it cheapens life in the same way and is thus indistinguishable.51

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50 Warren T. Reich, ed. Encyclopedia of Bioethics, vol. 4, s.v. “Right to Refuse Medical Care,” by Alexander Morgan Capron.

51 Byrn, “Compulsory Lifesaving Treatment,” 21.

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The closest analogy between suicide and a refusal of lifesaving medical treatment would be from the perspective of communal relationships. Suicide has often been condemned as immoral due to a default of an individual's commitment to others. Each individual has a responsibility to others and usually makes a contribution to society, whether economic, religious, psychological, or political. As an abandonment of those responsibilities and a failure to contribute to society, suicide is condemned.

It is difficult to maintain this argument when the proposed burdens of not committing suicide are thought to outweigh the wrong of taking one’s life. For example, suicide may be viewed as an avoidance of the creation of significant burdens upon others like enormous medical expenses for a terminal patient. Nevertheless, in the arguments against suicide based upon responsibility to community, an analogy can be made with a refusal of medical treatment. The commitments of the person refusing treatment might be significant enough to justify intervention by society. An obvious example would be refusal of treatment by a person who held valuable information or was close to some breakthrough in scientific discovery which would benefit the lives of many. More to the point of the present study, the argument might be applied to the parent of a minor child when that parent refuses lifesaving medical treatment.

The analysis can turn on peculiar elements in

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individual cases, but on a national scale there is a distinct difference between suicide and refusal of lifesaving medical treatment. Suicide is a leading cause of death, accounting for 1 percent of all deaths. If suicide is grossly underreported, this only adds to the magnitude of the problem. There is evidence that many suicides are imitative. This enhances society’s interest in controlling the phenomenon. “These factors are not, for the most part, present in refusal of lifesaving medical treatment.”52 In general, it seems safe to conclude that the interest of society in preventing suicide does not provide a basis for compelling blood transfusions upon unwilling Jehovah’s Witnesses.

Preserving Life

In all societies there has been some sort of prohibition against the taking of human life. Protection of a right to live should be made for every person within the bounds of the authority of the protecting power. This fundamental right is based upon the awareness that every person has value. It is difficult to deny a right to life if one adheres to any system of human rights at all, since other rights would be meaningless without the right to live.53 Christian theology gives a moral point of view to Christian

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52Cantor, “A Patient’s Decision to Decline,” 257.

53Warren T. Reich, ed. Encyclopedia of Bioethics, vol. 4, s.v. “Life: Value of Life,” by Peter Singer.

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ethics which stresses the preservation and well-being of human life.54

To have a right means that others should not infringe in that realm without consent. An individual does not have to claim or insist on a right for it to exist. The necessity of claiming a right for it to exist would forbid compulsory medical treatment, but it might allow voluntary euthanasia or suicide. On the other hand, if the right to life is inalienable, it should not be surrendered or transferred. This view would discourage both suicide and voluntary euthanasia.55

Every human being has a right to live in virtue of his being a creature of God created in God’s image who is loved by God.56 Life itself is not one’s own property. It is a gift, a loan, from God for which one is held accountable. An individual does not have the right to seek to cause his own death or the death of another.57 A Christian should respect life, but “physical life is not of absolute value.”58

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54 James M. Gustafson, The Contributions of Theology to Medical Ethics (Marquette University, 1975), 25-37, 56-61.

55 Reich, Encyclopedia, “Life,” by Singer.

56 Sidney Greidanus, “Human Rights In Biblical Perspective,” Calvin Theological Journal 19 (April 1984): 13-22, 28-30.

57 David J. Atkinson, “Causing Death And Allowing To Die,” Tyndale Bulletin 34 (1983): 210. See also Paul Ramsey, Ethics at the Edges of Life: Medical and Legal Intersections (New Haven, Connecticut: Yale University Press, 1978), 146-47.

58 Gustafson, Contributions of Theology, 86-87.

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As Barth explained, “Life is no second God, and therefore the respect due to it cannot rival the reverence owed to God.”59

Some scholars like Leo Pfeffer place a higher value on life than any other interest of society. For this reason he favors compulsion of treatment in cases like those of the Witnesses in need of blood transfusions. He asserts that “the preservation of human life is obviously one of the most important interests of society--perhaps the most important,” therefore “it is certain that religious convictions cannot be permitted to stand in the way.”60 This position has drawn sharp rebuttals from some who are unconvinced by his arguments. Freedom is usually the value that is placed opposite life as being of equal if not greater value than life.61

While life is important, it is not the ultimate good at all times in society. Nations are quite willing to sacrifice the lives of thousands in time of war, but human life is still very precious in cultural and legal traditions. Would not the compelling of lifesaving treatment upon individuals

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59 Karl Barth, Church Dogmatics (Edinburgh: T. and T. Clark, 1961), 3: 350-51, cited by Ibid., 60.

60 Pfeffer, The Liberties of an American, 2d ed. (Boston: The Beacon Press, 1963), 55. Also see Pfeffer, Church, State and Freedom, 702; and David J. Sharpe and Robert F. Hargest, III, “Lifesaving Treatment For Unwilling Patients,” Fordham Law Review 36 (1967-68): 706.

61 For example, see Farr, God, Blood and Society, 114-16; Cannon, “The Right To Die,” 670; and Paris, “Compulsory Medical Treatment,” 22.

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engender a wider respect for the sanctity of human life? A similar argument is frequently used against capital punishment. Is society’s high respect for human life eroded by allowing individual, competent adults to refuse treatment. It is doubtful.62 Since lifesaving treatment is offered, even urged, upon a patient in the beginning, this is indicative of society’s respect for life. Allowing people to die with no offer of help, assistance, or love would be a sign of low sensitivity on the part of society. Withholding treatment with sadness of heart out of respect for the individual ‘s right of privacy and freedom of religion, though, elevates human dignity and worth. Society shows its respect for a wide range of values, including life, by allowing the individual a measure of self-determination.

Troubling, however, is the comparison of those religious interests society will choose to override in contrast to the sanctity of life:

It would seem anomalous to hold that freedom of religion cannot prevail over society’s insistence on monogamy, but could bar the state from saving a life, or that although a child must go to school despite his parents’ religious objections, his mother may die if she chooses. To hold that society cannot intervene to prevent the death of an adult is to suggest that life is less important to society than the morality of marriage, or the value of education, when, in fact, human life is society’s ultimate value and indispensable resource--the most compelling of state interests.63

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62 Davis, “The Refusal of Life-Saving Medical Treatment,” 106.

63 “Compulsory Medical Treatment and the Free Exercise of Religion,” 401.

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There are con