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 conflicting values in these examples. In the second example an important distinction can be made between a competent adult who decides for herself and children that must be protected because they are not competent. The first example is reminiscent of the Reynolds decision. The analogy loses its force, however, if the threat of polygamy to the welfare of society is taken for granted. If that threat is not real, then rather than justifying compulsion of treatment by the state, it may be that Reynolds was itself a violation of religious rights.

 

The almost instinctive weighing of interests accounts for many decisions compelling a transfusion when they must be made quickly in a life-and-death situation in a hospital room by a judge. In a situation less charged with emotion, the same judge might decide in favor of the value of freedom. 0Connell states that

 

Life is precious in our society, and it might seem to be overly academic and unrealistic to require strict compliance to the principles of law where a life can be saved by ignoring those principles.64

 

He immediately, though, weighs the value of life against that of liberty and concludes that the proper course of action for each individual will “rest ultimately upon the values” of that person.65

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64 O‘Connell, “The Right to Die,” 170.

 

65 Ibid, 171.

 

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Protecting the Medical Profession

 

The refusal of blood transfusions by Jehovah’s Witnesses creates a conflict of interests for the medical profession.66 Occasionally the courts have weighed the interests of the medical profession against the religious convictions of the Witnesses. The sincere physician who wants to save lives is forced either to compel treatment or use less desirable means in order to respect the convictions of the patient. This conflict of interests sometimes results in tremendous pressure and ridicule of the Witnesses by the medical profession to persuade them to submit to treatment. An intense hostility exists between some Witnesses and some doctors.67 Many physicians express disgust at the obstinance of the Witnesses. Instead of seeing their refusal as a sincere religious belief, it is taken as an affront to the training and expertise of the doctor who is accustomed to most patients accepting any treatment the doctor recommends.

 

On the other hand many physicians manifest a helpful, cooperative spirit of understanding. While not agreeing with the Witnesses, they are sympathetic to their dilemma and want

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66 Albert Studdard and James Y. Greene, “Jehovah’s Witnesses and Blood Transfusion: Toward the Resolution of a Conflict of Conscience,” Alabama Journal of Medical Sciences 23 (October 1986): 454-59.

 

67 Paul C. S. Hoaken, “Treatment of Jehovah’s Witnesses,” Canadian Medical Association Journal 129 (1 October 1983): 678; and W. Glen How, “Treatment of Jehovah’s Witnesses,” Canadian Medical Association Journal 130 (1 February 1984): 253, 256.

 

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to provide whatever treatment possible that will not offend the Witnesses consciences.68 Providing medical treatment for Witnesses can involve extra testing and more precise surgery, but some physicians are willing to “start with an honorable respect for religious beliefs” and do the extra work necessary to operate and “provide continued good health for them.”69

 

The need for training doctors in problems like this is evident from a study by one doctor who read Witness literature, attended their meetings, and interviewed Witnesses to try to understand them better. He then surveyed medical students and physicians at the North Carolina Memorial Hospital. He found that 58 percent did not know why Witnesses refuse a transfusion. Many who claimed they knew the reason did not really know. This was evident from their incorrect answers to the survey. The majority of the doctors surveyed said they would be depressed if their patient died because of

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68 William T. Fitts and Marshall J. Orloff, “Blood Transfusion and Jehovah’s Witnesses,” Surgery, Gynecology and Obstetrics 108 (April 1959): 502-7; Bernard Gardner et al., “Major Surgery in Jehovah’s Witnesses,” New York State Journal of Medicine 76 (May 1976): 765-67; J. M. Thomas, “Meeting the Surgical and Ethical Challenge Presented by Jehovah's Witnesses,” Canadian Medical Association Journal 128 (15 May 1983): 1153-54.

 

69 George Thomas, Robert W. Edmark, and Thomas Jones, “Issues Involved with Surgery on Jehovah’s Witnesses,” in Moral Problems in Medicine, ed. Samuel Gorovitz, et. al (Englewood Cliffs, New Jersey: Prentice-Hall, 1976), 240-41. This is a reprint of an article from The American Surgeon 34 (July 1968): 542-43.

 

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a refusal of blood. Frustration existed due to the inability of doctors to treat a patient according to previous training and knowledge. Duh speculated that part of the frustration was present because most physicians do not really know why Witnesses refuse transfusions. He suggested that a partial solution to the problem was increased knowledge about the Witnesses’ beliefs on the part of physicians.70

 

There have been admissions by physicians that the medical profession has administered transfusions when they were not absolutely necessary. Medical doctors now recognize that they can perform many forms of major surgery without transfusions at low risk.71 One study reported nineteen transfusions. successful spinal fusions without One physician has many Witness patients sent to him due to their refusal to receive blood. He has performed surgery on about 2,500 Witnesses, often using electrocautery to minimize bleeding. Only three of these patients have died and only

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70 Samuel V. Duh, “Physician Reaction to Refusal of Blood Transfusions By Jehovah’s Witnesses,” Journal of the National Medical Association 79 (May 1987): 467.

 

71 Carl L. Nelson and W. Scott Bower, “Total Hip Arthroplasty in Jehovah’s Witnesses Without Blood Transfusion,” Journal of Bone and Joint Surgery 68-A (March 1986): 350-53.

 

72 Richard Bowen et al., “Posterior Spinal Fusion J. Without Blood Replacement in Jehovah’s Witnesses,” Clinical Orthopaedics and Related Research 198 (September 1985): 284-88.

 

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one for lack of a transfusion.73 Other physicians have developed techniques to retard bleeding during surgery or otherwise avoid a transfusion.74 Efforts have been made to adapt techniques to recycle blood back into a patient without the momentary storage that makes the practice immoral for a Witness.75 Research into blood substitutes or artificial

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73 Elizabeth Rasche Gonzalez, “Fluosol A Special Boon To Jehovah’s Witnesses,” Journal of the American Medical Association 243 (22/29 February 1980): 720.

 

74 Earl Belle Smith, “General Surgery In Jehovah’s Witnesses--Personal Experience: A 22-Year Analysis,” Journal of the National Medical Association 72 (July 1980): 657-60; A. J. A. Cunningham, “Controlled Hypotension to Minimize Blood Loss of Anaemic Jehovah’s Witness Patient Undergoing Total Hip and Shoulder Replacement,” British Journal of Anaesthesia 54 (August 1982): 895-97; Howard S. Nearman, “Postoperative Management of a Severly Anemic Jehovah’s Witness,” Critical Care Medicine 11 (February 1983): 142-43; Thomas A. Shannon, “Total Exsanguination After Refusal of Blood Transfusions,” New England Journal of Medicine 306 (4 March 1982): 544-45; T. J. B. Harris et al., “Exsanguination in a Jehovah’s Witness,” Anaesthesia 38 (October 1983): 989-92; M. F. Reid, K. Nohr, and R. J. S. Birks, “Eclarnpsia and Haemorrhage in a Jehovah’s Witness,” Anaesthesia 41 (March 1986): 324-25; P. J. Howell and P. A. Bamber, “Severe Acute Anaemia in a Jehovah’s Witness,” Anaesthesia 42 (January 1987): 44-48; “In Place of Blood: New Techniques to Treat Jehovah’s Witnesses,” Hastings Center Report 12 (February 1982): 3. The study by Harris was prompted by the death of a Witness patient.

 

75May Annexton, “Autotransfusion For Surgery: A Comeback?” Journal of the American Medical Association 240 (15 December 1978): 2710-11; Henry H. Khine et al., “A Method of Blood Conservation in Jehovah’s Witnesses: Incirculation Diversion and Refusion,” Anesthesia and Analgesia 57 (March-April 1978): 279-80; J. M. F. Clarke, “Surgery in Jehovah's Witnesses,” British Journal of Hospital Medicine 27 (May 1982): 497-500; Benjamin Lichtiger, Jacques F. Dupius, and Jan Seski, “Hemotherapy during Surgery for Jehovah’s Witnesses: A New Method,” Anesthesia and Analgesia 61 (July 1982): 618-19. A letter to the editor appeared in response to the Lichtiger study in the same journal in January 1983, 122.

 

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blood has been conducted, and many individual cases have been treated with these new substances.76

 

Major heart surgery can usually be performed without any transfusions of blood.77 One study of 542 operations without blood transfusion concluded “that patients who refuse

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76 Elizabeth Rasche Gonzalez, “The Saga of ‘Artificial Blood,”’ Journal of the American Medical Association 243 (22/29 February 1980): 719-20; idem, “Fluosol A Special Boon,” 720, 724; Arthur S. Brown, Joseph H. Reichman, and Richard K. Spence, “Fluosol-DA, a Perfluorochemical OxygenTransport Fluid for the Management of a Trochanteric Pressure Sore in a Jehovah’s Witness,” Annals of Plastic Surgery 12 (May 1984): 449-53; Harumasa Ohyanagi et al., “Surgical Use of Fluosol-DA in Jehovah’s Witness Patients,” Artificial Organs 8 (February 1984): 10-18. Several other technical articles on this product appear in the same issue of the Ohyanagi source.

 

77 Denton A. Cooley et al., “Open Heart Surgery in Jehovah’s Witnesses,” American Journal of Cardiology 13 (June 1964): 779-81; Charles P. Bailey et al., “Open Heart Surgery Without Blood Transfusion,” Vascular Diseases 5 (December 1968): 179-87; Frank S. Folk, Charles P. Bailey, and Tetuo Hirose, “Open Heart Surgery Without Blood Transfusion,” Journal of the National Medical Association 61 (May 1969): 213-18; C. Wilton Simmons, Jr. et al., “Vascular Surgery in Jehovah s Witnesses,” Journal of the American Medical Association 213 (10 August 1970): 1032-34; John R. Zaorski, Grady L. Hallman, and Denton A. Cooley, “Open Heart Surgery for Acquired Heart Disease in Jehovah's Witnesses,” American Journal of Cardiology 29 (February 1972): 186-89; Frank M. Sandiford et al., “Aorto-coronoary Bypass in Jehovah’s Witnesses,” Journal of Thoracic and Cardiovascular Surgery 68 (July 1974): 1-7; idem, “Aortocoronary Bypass in Jehovah’s Witnesses: Review of 46 Patients,” American Surgeon 42 (January 1976): 17-22; M. Lang et al., “Sequential Triple-valve Replacement in a Jehovah’s Witness,” Canadian Medical Association Journal 122 (23 February 1980): 433-35. Sandiford in “Aorto-coronoary Bypass” reported on thirty-six bypass operations without blood transfusions. There were only two deaths, neither related to the failure to transfuse. The study encouraged avoiding transfusions whenever possible for all heart surgery. Similarly the study by Zaorski reported only one death due to anemia in forty-two surgeries.

 

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blood transfusion for religious reasons can undergo major cardiovascular operations with an acceptably low risk.”78 Cardiac surgery has even been performed on children of Jehovah’s Witnesses without transfusions.79 Although it may involve more risk for the patient or extra effort by the doctor, most Witnesses can be treated without a blood transfusion.

 

Some physicians and hospitals have refused to treat Witnesses, and there are few Witness doctors who can treat their own people. Some doctors take the restriction placed upon them by the Witnesses as a personal insult, but many are learning to accept them as a challenge to advance their skills.80 One author concluded, “Although the surgeons may feel that they are deprived of an instrument of modern medicine . . I am convinced that by operating on these patients they will learn a great deal.”81 Just as the struggles of

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78 David A. Ott and Denton A. Cooley, “Cardiovascular Surgery in Jehovah’s Witnesses,” Journal of the American Medical Association 238 (19 September 1977): 1258.

 

79 Leon Levinsky et al., “Intracardiac Surgery in Children of Jehovah’s Witnesses,” Johns Hopkins Medical Journal 148 (May 1981): 196-98.

 

80 J. Lowell Dixon and M. Gene Smalley, “Jehovah’s Witnesses: The Surgical/Ethical Challenge,” Journal of the American Medical Association 246 (27 November 1981): 2471-72. These authors are Witnesses. This article was reprinted in Awake!, 22 June 1982, 25-27.

 

81 H Bolooki, “Treatment of Jehovah’s Witnesses: Example of good care,” Miami Medicine 51 (1981): 25-26; cited by Ibid., 2472.

 

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the Witnesses in the court room have advanced freedom of religion for all, their struggles with the medical profession have benefited others by the development of new medical techniques.

 

In the transfusion court cases the role and rights of the medical profession have become an important argument. Because the Witnesses either come to the physicians or hospitals or are brought there, services are being demanded of the doctors. Professional ethics of physicians encourage them to save a life. Most physicians and hospital staffs have consciences which want to save a patient if possible. Sometimes this tips the balance in favor of the interests of the medical profession and against the constitutional rights of privacy and freedom of religion of the Witnesses. It is frequently argued that the ethical integrity of the medical profession must be protected.

 

How important is the conscience of the medical profession in compulsory treatment situations? The existence of the doctrine and practice of informed consent seems to make the physician’s judgment secondary to a competent, adult patient’s rights. The existence of laws that restrict the activities of physicians are similar evidence that doctors may not do as they please. Thus Paris argues, “It is acknowledged that it might be difficult for a physician to act against his best professional judgment, but that

 

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judgment, however valued by society, is riot sacrosanct.”82 What has been required in some court cases is the violation of the religious conscience of a Witness due to the conscience of a physician. In reverse, the physician is not being asked to do something contrary to his conscience. He is being asked to refrain or do nothing with respect to a blood transfusion.83

 

A second problem present for the medical professional is the possibility of civil action if medical assistance is not rendered. Frequently, transfusion cases arise due to fears of liability by hospitals or doctors. For a physician to be held morally responsible for failing to act, it must be demonstrated that the doctor foresaw the consequences, could have acted, and had a duty to act.84 In blood transfusion cases or similar compulsory medical treatment situations the consequences are usually evident and the ability to act is present. The key question is one of duty. A physician may feel a compulsion to act or have a conscience that encourages him to act, but does his wish to treat a patient override the patient’s desire not to be treated? Does duty demand that

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82 Paris, “Compulsory Medical Treatment,” 26. Similarly, Cantor says, “Unfettered exercise of medical judgment has never been a sacrosanct value” (Cantor, “A Patient’s Decision to Decline,” 250).

 

83 Byrn, “Compulsory Lifesaving Treatment,” 29. He says the argument of the supremacy of the doctor’s conscience ‘‘finds no real support in law.

 

84 Atkinson, Causing Death,” 215.

 

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he act?

 

Once treatment has begun, a physician is obliged to give reasonable care. The best care might entail a transfusion. To do surgery or continue treatment without a transfusion might mean the pursuing of a more hazardous means of treatment. If a doctor ends treatment already begun, he is open to the charge of abandonment. In such cases care by the physician and hospital should continue to whatever degree is possible. Discharging a patient in the middle of treatment might be a further contributing factor to a decline in the patient’s physical condition. On the other hand, the doctor and hospital should not be required to undertake a method of treatment that is contrary to sound medical opinion because of the limitations prescribed by a patient like a Witness. For example, a surgeon should not be required to operate on a bleeding ulcer if the patient refuses any blood transfusions.85

 

As long as waivers are signed that release the hospital and doctor from responsibility, there is no legal support for any malpractice action. The survey in chapter three demonstrates that Witnesses are extremely cooperative in signing releases, and they are not inclined to sue when their rights are respected. Their suits invariably come from transfusions being forced on them in spite of their waivers

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85 Byrn, “Compulsory Lifesaving Treatment,” 32.

 

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and refusals. The possibility of criminal charges are even more remote.86 That likelihood is an illusion with no basis in fact.

 

It may be wise for doctors and hospitals to turn to the courts to resolve potential liability problems from time to time,87 but there is no real threat to the medical profession that should become an overriding state interest for the compelling of lifesaving medical treatment. Only when there is a question of competency does any risk arise for the medical professional due to the unlikelihood of informed refusal. It is precisely at this same point that other state interests or ethical obligations seem to increase to provide more compelling reasons to order treatment. The rights of autonomy and freedom of religion of a patient, though, deserve at

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86 Paris, “Compulsory Medical Treatment,” 27-28; Davis, “The Refusal of Life-Saving Medical Treatment,” 102-3.

 

87 One study surveyed possible reactions to a variety of situations involving Jehovah’s Witness patients. The survey was conducted among medical students, faculty, and house staff at the Indiana University Medical Center. A wide exposure to medical situations involving Witnesses was reported (84 percent), but only 19 percent had learned about the Witnesses in formal medical education. A significant portion were unaware of the importance of protecting themselves with waivers or court orders, suggesting the need for better education in the future by medical schools. Morris Weinberger, William M. Tierney, James Y. Greene, and P. Albert Studdard, “The Development of Physician Norms in the United States: The Treatment of Jehovah’s Witness Patients,” Social Science and Medicine 16 (August 1983): 1719-23; and William M. Tierney, Morris Weinberger, James Y. Grenne, and P. Albert Studdard, “Jehovah’s Witnesses and Blood Transfusion: Physicians’ Attitudes and Legal Precedents,” Southern Medical Journal 77 (April 1984): 473-78.

 

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least as much respect as the rights of the physician. There is no state interest on behalf of the medical profession that should override the consciences of the Jehovah’s Witnesses on transfusions, even if the physician’s conscience is religiously motivated.

 

Protecting Children

 

Children have provided the courts with a state interest in transfusion cases in two ways. If the patient is a child and considered incompetent to make a decision about proposed medical treatment, then the state consistently invokes the parens patriae doctrine and makes the child a temporary ward of the state for the purpose of ordering a transfusion. There is a reluctance in society to let one individual makes a choice for another individual that will mean death, even if that person is the parent. The other way in which children have become a part of a state interest in compelling medical treatment is if the patient has minor children. This argument is made in various ways. The importance of a child having parents is invoked. Economic damage and abandonment which might result in a new burden on society are also a part of the argument.

 

Who should be allowed to make the decision of administering or withholding medical treatment for an infant or child? Society has placed the welfare of the child in the hands of the parents and granted them great decision-making

 

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authority over the child, but parental rights have limits. Corporate bodies in society may have a better sense of justice at times than individuals. Both individuals and groups are morally flawed, so a system of checks and balances is better than positing all of the authority in one source.88

 

The long existence in law of punishments for abuse or abandonment of children attests to the strong awareness of right behavior on the part of parents. Not only is positive harm abhorred, but omission of what is needful for the health of a child is repugnant. Parental rights are tempered by parental duties and responsibilities. There is little doubt that most Witness parents believe they are doing what is best for their children by refusing a transfusion for them. Is a parent’s right to direct the life of his or her child supreme to society’s interest in the welfare of that child? Although this is a value judgment for each individual answering the question, the continued consistency of the courts in ruling on this question should leave little doubt as to the answer.

 

A parent ‘s freedom of religion should not result in harm to another person, especially to a defenseless child.89 Speaking and acting on behalf of a child falls into the finest of the Judeo-Christian ethic of acting on behalf of

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88 James Sellers, “On Turning It Over to the Parents,” Christian Century, 27 February 1985, 204.

 

89 Macklin, “Consent, Coercion, and Conflicts,” 365-66; Riga, “Compulsory Medical Treatment,” 130-32.

 

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those who have little or no voice, power, or authority. Lifesaving transfusions appear to be a duty as long as the child’s prognosis for recovery is quite good and no serious harmful effects are anticipated from the transfusion. Only in rare situations like childhood cancer might a transfusion be productive of more harm than good.90

 

The question of extending parens patriae to adults due to minor children is more difficult. It suggests an artificial distinction in treatment of different adults. Is the state’s interest more compelling if the patient is a single parent? If one has adequate insurance and financial resources to provide for children in case of death, should treatment not be compelled? Might patients be treated differently due to economics or the existence of extended families who could care for an orphan? What if the parent will not be able to go back to work after recovery? Should treatment not be compelled? If the emphasis is upon emotional support, what if the parent is not a good parent? Should treatment only be compelled on good parents?

 

On the other hand, is the compelling of a transfusion on a parent with minor children not for the ultimate benefit of the children? This argument is “appealing” and is based upon an “altruistic concern.”91 How far should it be

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90 Terrence F. Ackerman, “The Limits of Beneficence: Jehovah's Witnesses & Childhood Cancer,” Hastings Center Report 10 (August 1980): 13.

 

91 Cantor, “A Patient’s Decision to Decline,” 251.

 

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extended, though?

 

There are numerous situations where a child may be left alone by a parent with consequent emotional upheaval in the child. Death of a parent from natural causes, service in the armed forces, divorce, or even extended travel might cause some emotional wounds. Yet these unintended inflictions of emotional harm are never the source of state intervention; to suggest such intervention would undoubtedly provoke indignant cries of interference with personal liberty. Indeed, an infinite variety of parental conduct could be regulated if prevention of the infliction of emotional harm upon children were accepted as an unlimited basis for interference with parental conduct not intended to harm the child. The state could, under such a theory, compel medical checkups or dictate diets in order to preserve the health of parents.92

 

If the patient is a child, the state should override the conscience of the parents for the sake of the child and order a lifesaving blood transfusion if necessary. If the patient is an adult, compelling medical treatment on parents for the sake of minor children is very appealing, but it is a technique that is fraught with inconsistencies. However, when a judge is faced with a young mother or father bleeding to death in an emergency room while small children are sitting out in the waiting room, sentiment is likely to win over cold logic.

 

Other Potential State Interests

 

Several other attempts to find a substantial state interest to compel blood transfusions deserve only brief notice, since the interest is only a strained, remote

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92 Ibid 252.

 

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association. All of these attempts invoke either a supposed danger to society or the loss of some benefit to society. For example, the effect on society’s productivity is not going to be harmed in a significant way by the loss of one individual. The state s economic interest is fleeting. Healthy people are not forced to work, so why should this excuse be used in order to violate the religious freedom and privacy of an individual. If taken seriously, this argument would be nothing more than a utilitarian evaluation of the worth of human life.

 

There is no danger to public health in a Witness refusing a blood transfusion. If Witnesses were refusing treatment for a contagious disease, society would have a strong interest to compel treatment. No such danger exists, though. There is little danger to public morals either. Society’s appreciation of the sanctity of life will not plummet if individual Witnesses are given freedom to refuse transfusions. Fellow patients are in little danger either. Arguments that disruption over refusal of treatment by Witnesses will distract hospital personnel to the detriment of other patients have been called “speculative” and “farfetched.”93 The reverse may be true. Once a path of limited intervention or non-intervention is followed, more time may be directed toward other patients.

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93 Ibid., 250.

 

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Protection of surviving adults is also invoked as a reason to compel treatment. If arguments for the protection of self or of minor children falter, then this argument will be even less persuasive. Certainly the death of a Witness patient will result in feelings of loss, grief, despair, or other emotional harm for surviving adults. If treatment could be compelled for this reason, however, the state would have reason to stop most divorces and some marriages. Emotional consequences to surviving adults do not outweigh the rights of the patient.94

 

Balancing Considerations

 

Attempts to solve problems like that of blood transfusions for the Jehovah’s Witnesses with statutory answers are fraught with difficulty. Every case has peculiarities which are difficult to anticipate and cover with a law. While a general rule might be applicable most of the time, many balancing considerations could turn judgment in the reverse direction when a case is examined individually. A brief examination of some balancing considerations follows.

 

1. The type of treatment is important. Blood transfusions are considered a simple, painless medical procedure by the medical profession. The danger, even with the threat of AIDS, is slight. Important balancing considerations are the degree of risk involved in, the likelihood of success of,

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94 Ibid., 249-50.

 

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and the amount of pain of a procedure. In one case involving an elderly woman the court affirmed her right to refuse treatment. Blood transfusions were being administered to her by surgically opening her veins to facilitate the transfer. The judge’s opinion said that she did not have a right to commit suicide, but she did have the right not to be tortured any longer. The transfusions were stopped and she died the next day.95

 

The diagnosis should make it clear-cut that a blood transfusion is essential before one is ordered. Examples of unnecessary transfusions ordered by the courts have been given. While the Witnesses exaggerate greatly the overuse of transfusions by the medical profession, doctors have admitted that it occurs. Again, while the Witnesses overrate the likelihood of alternate means of treatment being as effective, frequently alternate means can be used. Alternate means of treatment may be more costly or demanding for the doctor, but if available they should be considered.

 

2. Length of life is significant too. The Witness transfusion cases involved primarily children or adults who would have many years of life in front of them if they recovered from the crisis at hand. Prospects for a long life after recovery would encourage compulsion of treatment over a patient’s refusal. The older a patient is, however, the less

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95 Veatch, Death, Dying, 116-17.

 

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compelling this argument might be. In particular, if a situation arose of an elderly patient whose health was frail already, the need to compel treatment should be more limited. If a person is likely to die even if a transfusion is ordered, that consideration will mitigate against compelling treatment. Refusal of death-prolonging treatment is reasonable, especially if the refusal is built on the right of privacy and deeply held religious convictions.

 

3. Quality of life is a controversial but relevant consideration. If a patient’s condition has already deteriorated to a point where quality of life will be meager even with a transfusion, that would be an extra argument against one. If, however, a patient is likely to recover fully with no ill effects after a transfusion, that would be an incentive in favor of compelling one.

 

4. Emergency conditions are frequently crucial to a decision on blood transfusions. In a life-and-death situation where time is of the essence, a hasty decision must be made. When confronted with this, judges have and will probably continue to decide on the side of life. If a mistake is made, the logic is that it is better to make a mistake by infringing on an individual’s freedom of privacy and religion and allowing one to live rather than wrongfully trying to protect someone’s freedom of privacy and religion but denying one a chance to enjoy those freedoms due to death. It should go without saying that medical personnel

 

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are given a much wider degree of latitude in treatment in emergency situations where a patient is unconscious and no one is available to give consent.

 

5. Competency is a key factor upon which many court decisions have turned. If a patient is ruled incompetent, this usually tips judgment in favor of compulsion of treatment. Competency can be a thorny problem, though. If a person refuses a potentially lifesaving blood transfusion on religious grounds, the reaction of the medical professional is often that the person must be crazy. Pride in one s professional expertise can agitate the judgment of a physician. When a Witness dares to reject that expertise and place limitations on the treatment that is acceptable, a feeling of hostility can encourage a doctor to believe that the Witness is not only misinformed and deluded but mentally incompetent.

 

Allowing religious freedom and freedom of conscience in a pluralistic society means permitting people to believe ideas which the majority deems ludicrous. The alternative, though, is the tyranny of the majority. Most individuals believe something which places them in a minority. They would not want society compelling them to believe or act differently. A recognition of the finitude of man and the fallible nature of every man's system of belief reinforces this essential liberality toward others. The price of freedom and the price of respecting the dignity of other

 

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individuals, then, is allowing them to hold unpopular opinions. Declaring another incompetent because one disagrees is an action too full of pride. Other persons may be rational and competent even though they adhere to irrational beliefs.96

 

Competence can be complicated by problems of verification and factors related to time. If a person’s competency is recognized and a refusal of treatment is clear, should not that refusal still be recognized if the patient drifts into an unconscious state? An extra burden would be placed upon a devout Witness if he knew of such a possibility. As he is suffering, must he also endure the emotional strain of knowing a transfusion may be administered to him involuntarily if he slips into a comatose condition? The relationship of trust between physician and patient can be damaged to the detriment of the patient. On the other hand, the inability to exercise a right to refuse occurs when a patient becomes incompetent. This tends to makes an incompetent’s rights less fundamental in constitutional law.97 Rights are not lost, however, because consent is still necessary unless the situation is one of an emergency.98

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96 Macklin, “Consent, Coercion, and Conflicts of Rights,” 369.

 

97  Davis, “The Refusal of Life-Saving Medical Treatment,” 100-101; Byrn, “Compulsory Lifesaving Treatment,” 24.

 

98 Mark Fowler, “Appointing An Agent To Make Medical Treatment Choices,” Columbia Law Review 84 (May 1984): 992.

 

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Another difficulty is the refusal of a patient through a medical alert card or a previously signed document. Although it is likely that a Witness would not waver in his refusal if he were conscious and aware of his physical condition, there remains the possibility that he signed a refusal document without truly considering a life threatening situation. His signature on such a document may have been done in an environment of peer pressure in order to please family or friends. He may have lost some of his religious fervor or even changed his religious persuasion in the intervening time. Testimony from family and friends that an unconscious patient would stand by a refusal document if he were conscious and alert is valuable testimony, but it also might raise the suspicions of a judge that the signature was made to conform to family pressure. Ordering a transfusion in such a case might offend the patient if he recovers, but not ordering it might lead to death. If the patient would have consented had he been conscious, there is no recourse if the court lets him die. It is like saying, “Sorry,” to the corpse of an innocent man wrongly given capital punishment. Nevertheless, should a patient’s previously expressed wishes become completely irrelevant when the patient loses consciousness?99

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99Fowler details problems with acceptance of oral or written expressions of refusal to give consent. He concludes, “The patient’s control over his care would be significantly enhanced if he could also appoint a representative to speak for him when he is no longer able to speak for himself” (Ibid., 1000).

 

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Quite separate and apart from the peculiarities of the blood transfusion cases is the competence question of a patient due to illness. Does illness or pain significantly affect a patient in such a way as to cast doubt on competence? Is there a limitation placed on autonomy and competency due to the presence of illness? The answer will vary based on the paternalistic bias of the respondent and the inhibiting degree of the illness. However, most adult Witnesses who are conscious fall within the generally recognized bounds of a competent patient.

 

The Limits of Paternalism:

A Whole-Person Approach

 

Paternalism is interference with a person’s liberty. It is justified by the ultimate happiness or good of that person. In medicine paternalism is interference by the medical community with a patient’s freedom, justified on the basis of the best interests of the patient.100 Glass discusses this issue in light of Mill’s classic work On Liberty.101 Mill claims that

 

the only purpose for which power can be rightfully exercised over a member of a civilized community, against

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100Gary B. Weiss, “Paternalism Modernised,” Journal of Medical Ethics 11 (December 1985): 184.

 

101Marvin Glass, “Not Going to Hell on One’s Own,” Philosophy 58 (October 1983): 471.

 

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his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.102

 

One is allowed to persuade and entreat another, but not to compel. The only part of one’s conduct for which one is amenable to society is that conduct which concerns others. If actions only affect self, one has absolute independence.103 Mill is usually cited in discussions of paternalism, then, as an opponent of it.

 

Glass cites a rarely noticed comment by Mill that may modify previous thought on Mill and paternalism. He argues that Mill’s thought would support intervention to force an adult Jehovah’s Witness to receive a lifesaving blood transfusion. The quotation postulates an unsafe bridge which a man is about to cross unsuspectingly. A bystander knows of the danger and intervenes “without any real infringement of  his liberty.”104

 

Using this illustration Glass distinguishes between a person’s objective and subjective interests. Subjective interests are what a person wants based upon his own understanding, even if it is erroneous. Objective interests are what a person would want if he or she were aware of the causes and consequences of those wants. Sometimes objective

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102 Ibid, 471-72.

 

103 Reich, ed. Encyclopedia of Bioethics, vol. 3, s.v. “Paternalism,” by Tom L. Beauchamp.

 

104 Glass, “Not Going to Hell,” 473.

 

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and subjective interests are identical. He argues at length that the objective interest of Jehovah’s Witnesses is to receive a transfusion in a life-or-death situation. This is due to their incorrect belief against blood transfusions and possible consequences of a refusal. Society would be morally justified in intervention in the name of paternalism with an adult Jehovah’s Witness, because the transfusion is in his or her objective interest.105

 

The objection that this view would lead to a tyranny of the state over a minority is not really answered.106 Glass simply does not see that as a problem in society. He is not recognizing the history of tyranny, even recent history of the Witnesses in this century, or he would acknowledge the grave dangers present. His answer, for those who fear creeping state-initiated paternalism,’’ is a referendum on a proposition:

 

In matters primarily self-regarding, should the state be permitted to overrule the religious preferences of individuals when, in the opinion of the state, such preferences are based on demonstrable errors of fact, e.g. misinterpretation of the Bible, and when, in the opinion of medical science, non-intervention is likely to result in death or very serious bodily injury?107

 

In this manner Glass condones any paternalistic intervention which the majority sponsors by referendum. The Nazis would have agreed with his proposal.

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105 Ibid., 474-75.

 

106 Ibid., 479-80.

 

107 Ibid., 480.

 

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Maybe the most helpful section of the essay by Glass is a footnote where he responds very briefly to those who contend intervention by society is not paternalism. Glass quotes Mill’s response:

 

If grown persons are to be punished for not taking proper care of themselves, I would rather it were for their own sake, than under the pretence of preventing them from impairing their capacity of rendering to society benefits which society does not pretend it has the right to exact.108

 

The struggle of the courts to justify any compelling state interest in forcing medical treatment on an adult is evident in the history of transfusion cases cited in chapter three. This justification is more difficult to maintain when it is based upon a grave danger to society posed by a Witness refusing medical treatment. The nearest one can come is the need for a tax-paying citizenry or able-bodied citizens to bear arms, the latter of which the Witnesses will not do. There is no justification for paternalism in the transfusion cases based on benefit to society. The focus of Christian ethics is important. A person is valued not primarily because of his utility to society, but because he is a creature of God, created in his image, and loved by him with a love that sent Christ into the world.

 

There are three general types of paternalism-extensive, limited, and antipaternalism.109 Extensive

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108 Ibid, 479-80.

 

109 Reich, ed. Encyclopedia of Bioethics, vol. 3, s.v. “Paternalism,” by Beauchamp.

 

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paternalism would justify widespread actions by society to protect the individual against himself. Limited paternalism justifies intervention only when the evil or harm prevented is greater than the evil or harm caused by coercive limitation of freedom. Antipaternalism contends that paternalism is never justified.

 

Paternalism may also be judged by the degree of autonomy or personal liberty of which the individual must be deprived. Individual liberty is an important condition for human dignity. If that liberty must be removed for a long time, paternalism would need more justification than for a temporary infringement on liberty. In a compulsory blood transfusion the patient’s personal autonomy must be violated only for a brief period of time. Even though the time period may be short, a devout Jehovah’s Witness will not see the compulsion of treatment as a minor thing. Many Witnesses feel a violation of their dignity and bodies for weeks after a forced transfusion, knowing that the blood of another is flowing throughout their body.

 

Authoritarianism is distinguishable from paternalism. In authoritarianism a patient’s freedom is limited for the physician’s power or selfish interest. In paternalism the patient’s freedom is similarly limited, but the motivation is different--being the patient’s ultimate benefit.110 Because

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110 Weiss, “Paternalism Modernised,” 186.

 

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of the improper spirit from which it flows, authoritarianism is not justified. Many years ago Mencken wrote that some physicians

 

conceive it to be their duty to force their advice upon everyone, including especially those who don t want it. That duty . . . is born of vanity, not of public spirit. The impulse behind it is not altruism, but a mere yearning to run things.111

 

While this sort of paternalism is on the decline,112 its ugly head can be resurrected in response to an obstinate Witness who claims superior knowledge to a physician in the area of transfusions.

 

The choice should not be between authoritarianism and paternalism but between paternalism and autonomy. In the autonomy model of medicine the patient’s values are decisive. In the paternalistic model the patient’s values are only one factor among others weighed by a physician in making a decision. Practicing paternalism is difficult. Sometimes it is hard to identify or understand another person in a way to determine his or her best interests.113 In particular it is difficult for outsiders to understand the strong feelings of a Jehovah’s Witness. These seem crazy or stupid to others. The inability of the patient to understand complicated medical information encourages the compelling of treatment according to the paternalistic model. However, the reverse

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111 H. L. Mencken, “Christian Science,” Baltimore Evening Sun, 28 February 1927; cited by Ibid.

 

112 Ibid., 184.

 

113Ibid., 186.

 

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is true in the autonomy model where the physician has difficulty understanding the importance of a patient’s values such as an abhorrence of blood transfusions for religious reasons.

 

If a paternalistic model is chosen over one that stresses autonomy, improved care of the patient is the goal rather than increased autonomy of the patient. Informed consent is designed to benefit the patient, because patient participation usually produces better results.114 A paternalistic model ought to be strongly influenced by the value of autonomy, however. Rather than making autonomy a minor value of little significance, it is a fundamental right of the patient of great value if the whole person is taken into consideration.

 

The conflict between a Witness and a physician can be over knowledgeable interpretation of medical facts. A Witness may refuse a transfusion, saying, “I will not die.” The best medical evidence may indicate the falsehood of this notion. More frequently, though, the Witnesses accept the prognosis of the physician. They realize they may die without a transfusion. For them something else, namely life in the age to come, is of more value. The value of health and physical life is in competition with spiritual life.115 If

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114 Ibid

 

115 Macklin, “Consent, Coercion, and Conflict of Rights,” 368.

 

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paternalism is merely a matter of medical knowledge, a stronger case can be made for its use on the Witnesses. Since paternalism involves values and it is more than a question of a degree of knowledge, autonomy must be given a high status in a model of doctor-patient relations.

 

Patients want to be treated as persons, not objects for study or examination. A person-centered approach is  superior to a problem-centered approach.116 In order to treat the whole person a physician must recognize the rights and worth of each patient, including deeply held religious convictions. Fletcher, then, was right in indicating where the Christian ethicist’s chief concern must be:

 

The moralist’s interest in the ethics of medicine has to do with the care of a patient, not with the treatment of a disease. We are concerned with medical care rather than with medical treatment. . . What is this, but to say that a patient’s moral and ethical rights and interests must weigh as heavily in the medical scales as his physical needs and condition?117

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116 Joseph Fletcher, Morals and Medicine (Princeton, New Jersey: Princeton University Press, 1954), 7. Also see David F. Allen, Lewis Penhall Bird, and Robert L. Herrmann, eds., Whole-Person Medicine: An International Symposium (Downers Grove, Illinois: InterVarsity Press, 1980).

 

117 Fletcher, Morals and Medicine, 8. Also see Henlee H. Barnette, Exploring Medical Ethics (Macon, Georgia: Mercer University Press, 1982), 33-40. A study published for the Christian Medical Fellowship in England claimed that British Medicine owed more to Christianity than to the Hippocratic Oath. Christianity introduced a compassionate note in the care of the sick and helped to dispel the odium of sinfulness which had so long been associated with all disease. Failings were admitted in the study, but the credit of ministering to human suffering and disease in the pervasive way it is done today belonged to Christianity. Is there anything distinctive that Christian ethics has to offer? The study emphasized Christian love as defined by Christ which emanates in a Christian's concern for relationships with people. Vincent Edmunds and C. Gordon Scorer, Medical Ethics: A Christian View (London: The  in an admirable fashion by a hospital chaplain in a discussion conducted at a hospital in Philadelphia, Pennsylvania, on how best to handle a case involving a Jehovah’s Witness:

 

It seems to me that a question like this revolves around the issue of the total welfare of the patient concerned and that this means that the spiritual welfare and the spiritual integrity of the patient must be part of the picture just as much as the physical well being is part of the picture. In other words, although the patient’s religious conviction is one with which you and I may well not agree and which may not make sense to us in terms of our own religious outlook, we still have to consider the fact that it is of central importance to the patient concerned and to his total well-being. Therefore, I do not think that the patient’s wishes in this regard should be set aside.

 

What I am trying to say is that it is not justifiable to cure a person physically, or to give him what is technically the best medical treatment, at the expense of his spiritual integrity. In the large sense, the best medical treatment is not simply that which ministers best to the patient’s total welfare. . .

 

What must be stressed from the religious point of view is that death is in itself not the worst thing nor the thing to be avoided at all costs. . . . The quality of his life is more significant than the quantity of it. It is more essential that he maintain his integrity of spirit and hold the meaning of his life unbroken than it is to continue that life itself. If his life with God as he sees it is compromised, if the central conviction which makes his life meaningful is broken, then even though his life persists it is meaningless for him and this may well be something that is much worse than death.

 

In a very real sense, it is possible to say that to find a meaning in life and to hold on to that meaning is more important than simply to have life itself. It is not just the romantic claim of a few poetic souls but it is a fairly common characteristic of most people that

 

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they would rather perish with a sense of meaning in life than have to live without it.118

 

A whole-person approach reveals sympathy not only to the patient’s autonomy and privacy, but to his religious convictions in an effort to care for the whole person.

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118Edward Harris, cited by Fitts and Orloff, “Blood Transfusion,” 504-5.

 

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CONCLUSION

 

Many ethical problems have been created in recent years in relation to medical science. The irony is that these problems are usually a result of the advances and successes of medicine, not its failures. As medical professionals are able to do more, more questions will arise on how much should be done. As the act of dying is prolonged over longer periods of time, how long is too long will be a vital concern. Undoubtedly as new techniques and methods are discovered and developed, further conflicts with religious beliefs will arise.

 

The blood transfusion cases of the Jehovah’s Witnesses provide a large body of legal precedents for future decisions on compulsory medical treatment. A limited paternalism appears to be the most common approach in dealing with adults while a broader paternalism is common for children. Although the free exercise of religion holds a high place in constitutional law, absolute freedom for the Witnesses with regard to blood transfusions will not be granted. Because their beliefs on transfusions are so ludicrous to outsiders, it is likely that there will always be an inclination for society to overstate any state interest for compelling treatment. However, a tradition of the acceptable way to deal with various types of compulsory medical treatment cases is

 

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being developed. The individuality of specific situations will necessitate further judgments by the courts and repeated conflicts between the Witnesses and society.

 

When the values are as precious as the sanctity of life, the autonomy of the individual, and religious liberty, a decision either to compel treatment or to refrain from treating will be difficult and painful to the sensitive judge or physician. One physician crassly told the author, “I would just get a release form and let them bleed to death.” Respect for religious liberty and for the autonomy of others might call for securing a release form and allowing the death of a devout Jehovah’s Witness, but this would not be done in anger or glee. Likewise, that same respect might call for the compelling of treatment and the saving of a life, but again it would be done with pain over the violation of another's conscience and freedom of religion.

 

[end of chapter 4 and conclusion]

 

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