CHAPTER IV
BALANCING COMPETING RIGHTS IN
COMPULSORY MEDICAL TREATMENT
Introduction
210
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
____________________
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.
211
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.
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
____________________
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.
212
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
____________________
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.).
213
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
____________________
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.
214
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
____________________
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.
215
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
216
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
____________________
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.
217
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
____________________
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).
218
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.
____________________
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.
219
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
____________________
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.
220
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
221
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
____________________
24 Thomas J. O’Donnell,
Medicine And Christian Morality (New York: Alba House, 1976), 59.
25Ibid., 61.
222
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
____________________
26William T. Fitts, Jr. and
Marshall J. Orloff, “Blood Transfusion and Jehovah’s Witnesses,” Surgery,
Gynecology & Obstetrics 108 (April 1959): 504.
223
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),
____________________
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).
224
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
____________________
28Ibid, 421.
225
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
____________________
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).
226
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
____________________
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.
227
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.
228
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
____________________
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.
229
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
____________________
33Ibid., 607.
230
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.
____________________
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.
231
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.
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
____________________
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.
232
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
____________________
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.
233
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
____________________
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).
234
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
____________________
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.
235
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
____________________
48Ibid 575.
49Tom L. Beauchamp,
“Suicide,” in Matters of Life and Death, ed. Tom Regan (Philadelphia: Temple
University Press, 1980), 73-74.
236
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
____________________
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.
237
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
238
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
____________________
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.
239
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
____________________
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.
240
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
____________________
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.
241
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
____________________
62 Davis, “The Refusal of
Life-Saving Medical Treatment,” 106.
63 “Compulsory Medical
Treatment and the Free Exercise of Religion,” 401.
242
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
____________________
64 O‘Connell, “The Right to
Die,” 170.
65 Ibid, 171.
243
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
____________________
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.
244
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
____________________
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.
245
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
____________________
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.
246
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
____________________
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.
247
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
____________________
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.
248
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
____________________
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.
249
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
250
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
___________________
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.
251
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
____________________
85 Byrn, “Compulsory
Lifesaving Treatment,” 32.
252
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
____________________
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.
253
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
254
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
____________________
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.
255
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
____________________
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.
256
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
____________________
92 Ibid 252.
257
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.
____________________
93 Ibid., 250.
258
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
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,
____________________
94 Ibid., 249-50.
259
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
____________________
95 Veatch, Death, Dying,
116-17.
260
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
261
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
262
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
____________________
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.
263
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
____________________
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).
264
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:
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
____________________
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.
265
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
____________________
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.
266
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.
____________________
105 Ibid., 474-75.
106 Ibid., 479-80.
107 Ibid., 480.
267
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
____________________
108 Ibid, 479-80.
109 Reich, ed. Encyclopedia
of Bioethics, vol. 3, s.v. “Paternalism,” by Beauchamp.
268
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
____________________
110 Weiss, “Paternalism
Modernised,” 186.
269
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
____________________
111 H. L. Mencken,
“Christian Science,” Baltimore Evening Sun, 28 February 1927; cited by Ibid.
112 Ibid., 184.
113Ibid., 186.
270
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
____________________
114 Ibid
115 Macklin, “Consent,
Coercion, and Conflict of Rights,” 368.
271
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
____________________
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
273
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.
____________________
118Edward Harris, cited by
Fitts and Orloff, “Blood Transfusion,” 504-5.
274
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
275
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]