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A Proposal for a Rothbardian Endorsement of Euthanasia

Law Liberty & The State (Phil 40350) Gerard Casey

Barry Grennan UCD Student Number: 10203001

A Proposal for a Rothbardian Endorsement of Euthanasia In his 1991 article for The Rothbard-Rockwell Report entitled The Right to Kill, With Dignity?, Murray Rothbard reveals his disdain for the act of euthanasia. He addresses the barrage of pro-death propaganda from left-liberals and left libertarians, maintaining that the mask has begun to slip, that the pretence of the importance of consent has been shown to be just that. This is argued to be the case in light of the example of Helga Wanglie. While the right-to-diers have long since lauded the Living Will, Helga left a spunky Living Will (according to Rothbards article1) in which she opted to be kept alive if she lapsed into a vegetative state. Helga's medical costs were covered by private insurance and thus she was no burden to the tax payer. It was concluded by her doctors that her case was hopeless and it was not in her medical best interest to be kept alive. Her family fought to uphold her wishes and keep her on life support. The view Rothbard espouses in his article is that the medical authorities were advocating baldfaced murder. While he may here be morally opposed to euthanasia, I shall endeavour to show that
1 On further examination I am not convinced that this is accurate, Mrs. Wanglie didn't leave

explicit instructions, rather she had said to her husband at some stage that that was what she wanted, in this sense the arguments surrounding Mrs. Wanglie are not far removed from the likes of the Cruzan case, which similarly hinged upon what the patient would have wanted. I believe this to be the case from a reading of Marcia Angell's writing on the case and due to the fact that the purpose of the court case that followed was not to determine the legal standing of some document signed by Mrs. Wanglie ahead of time, rather it was to decide who should be granted guardianship, Mr. Wanglie or the hospital, stressing not what decision was made but who made the decision. For the sake of the argument we shall assume from now on that a legal document had been drafted when she was compos mentis. It is not entirely important whether or not this was actually the case, it is the arguments that are raised which are of import and there will doubtlessly be cases of such spunky living wills being written, with the advance of medical technology, etc. The crucial question will be who is obliged by these living wills, spunky or otherwise.

the act should be admissible under Rothbard's libertarian political position. The main contention I foresee with my view is that Helga left an advanced directive stating that she should be kept alive at all costs. To this end I will address who would be obliged by her living will on my proposed Rothbardian scheme or perhaps more importantly who would not. To limit the discussion somewhat I shall focus on passive, involuntary euthanasia; the course of action suggested by medical authorities in Helga Wanglie's situation. While a discussion of voluntary, active euthanasia and the inherent autonomy issues that it entails would be of great interest to me, I see no scope for it in Rothbard's scheme as he holds to his life affirming axiom. I believe there are arguments against the application of this axiom in the case of euthanasia, for example, in his advocacy one is not an opponent of life but an opponent of suffering, the action taken having the side-effect of the loss of life. Furthermore, I would maintain that this life affirming axiom approach, while doubtlessly very clever and perhaps irrefutable, is only academically so. By this I mean that it can only be applied to the theoretical arguments surrounding euthanasia not the practical application of it. I believe this can be seen in Rothbards formulation of the axiom: [A] proposition rises to the status of an axiom when he who denies it may be shown to be using it in the very course of the supposed refutation. Now, any person participating in any sort of discussion, including one on values, is, by virtue of so participating, alive and affirming life. For if he were really opposed to life, he would have no business in such a discussion, indeed he would have no business continuing to be alive. Hence, the supposed opponent of life is really affirming it in the very process of his discussion, and hence the

preservation and furtherance of one's life takes on the stature of an incontestable axiom.2 The goal of the patient requesting active euthanasia is not to partake in some discussion, it is rather to cease the business of being alive. This may of course land us in the awkward situation in which no one could be said to be in a position to discuss a right to die, but there may be an unspoken right to die which could only be argued for by killing yourself. In any case, I am luring myself into a discussion I had wished to avoid. The right to die of an autonomous being is an abstruse topic at the best of times, compounded here by the brevity of Rothbard's account of the life affirming axiom. I believe a much more robust Rothbardian stance on passive, involuntary euthanasia can be derived from an analysis of his view on the nature of human beings, his discussion of so-called animal rights and more importantly his stance on the relationship between children, their rights and their guardians. The Nature of Man The view Rothbard has of man's nature is in line with the commonsense notion of personhood adopted by Joel Feinberg when he distinguishes a human person from a merely biological human being. Both commonsense personhood and the nature of man are simply descriptions of the observable behaviour of the entity in question. As summarized by Feinberg, commonsense persons are those beings who, among other things, are conscious (no permanently unconscious being can be a person to Feinberg), have a concept and awareness of themselves, have the capacity to
2 Rothbard, Murray N., The Ethics of Liberty, New York University Press, 1998, p32-33

experience emotions, reason and acquire understanding, the ability to make plans and act on those plans.3 For Rothbard, the nature of man is observable by man's reason (which is objective in that it can be employed by all men). It is through reason that man observes the facts of his own consciousness, what will make him happy, what will make him sad, etc. A rational analysis of man's nature yields this concise list of criteria for Rothbard; man has the capacity for conscious choice, it is necessary for him to use his mind to adopt goals and necessary to pursue those goals to survive and flourish, he has the capacity and the need to interact with other humans and to participate in the division of labour. This is a uniquely human mode of existence and it is what entitles an entity to human rights, it's human nature. The attribution of rights to animals is thus simply an emotive one as no other animals have the ability to reason, to make conscious choices, etc. To emphasis this point Rothbard makes reference to the quip "we will recognize the rights of animals whenever they petition for them" but hastens to add that this sort of logic does not dispossess human babies of their rights as they are future human adults. The Mirroring of Children and Rights Normal human adults, with the capacity for conscious choice, who have to use their minds to decide upon and pursue goals are natural self-owners. Children are quite evidently not self-owners but rather potential self-owners. The difficulty here is determining at what point the child become an actual self owner The mirrored problem in Helga's case is determining when the person ceases to be an actual self
3 Feinberg, Joel, Freedom & Fulfillment: Philosophical Essays, Princeton University

Press, 1992, p43


owner at one level and further still when do they lose all potential for self ownership. The qualities stated above will be crucial in determining these points. In the case of a new born child, the mother, as it's only certain creator, becomes it's owner. Thus, to suggest that some third party could claim "ownership" over the baby would give that party the right to forcibly take the baby from its natural or "homesteading" owner, the mother, this would be an invasion of her property right. This ownership obviously does not last in perpetuity, a 40 year old son is no longer under the complete control of his 70 year old mother. Such control is furthermore limited in type, a parent does not have the right to torture or murder a child. Parental ownership is thus of a trustee or guardian sort. Conversely, Rothbard tells us that the very concept of rights is negative, thus no one has the right to compel another to perform a positive act. Such compulsion would violate the right of the other person. Applied to the parent/child relationship, this means that while the parent must refrain from aggressing against the child, they have no legal obligation to feed the child and in this way may allow it to die. There is clearly a direct parallel with passive euthanasia here. Now to apply all this to Helga. She is clearly no longer a self-owner, she has lost not merely consciousness (as this would imply that we are not self-owners when we are asleep) but the capacity for conscious choice, she can no longer adopt goals or values, can no longer pursue her ends, has no ability to communicate or interact with other humans, not to mention that she is incapable of participating in the division of labour. As to whether she is a potential self-owner; this would, I suggest, be a matter for

medical analysis, we may however discuss the implications of the loss of potential self-ownership. If Helga no longer has any potential for future self-ownership, it is entirely her owners (callous as it may sound it would seem incongruent here to use the term guardian if there is no potential for self-ownership, I do not think Rothbard would refer to the guardian of a dog) decision what becomes of her. Without even the bare potential for self-ownership it would be absurd to suggest that Helga could be aggressed against. Now if Mr. Wanglie is her owner and she is killed against his wishes, it's an invasion of his property right, it would however seem within his rights to kill her. This is so because we have posited Helga as having no potential for selfownership and as such it would be nonsensical to think of her as having rights. If we assume that Helga is a potential self-owner, Mr. Wanglie could not kill or torture her but would be within his right to allow her to die by not feeding her (i.e. passive euthanasia) Regardless of whether she is a permanent non-self-owner or is still a potential selfowner, I think it's fair to say that Mr. Wanglie owns or would be the natural guardian to Helga. Arguments could be made here if necessary, Mr. Wanglie had invested a lot of time and energy into the relationship, he is the homesteading owner, she was bethrothed to him, etc. However I think it ought to go without saying that the family has first refusal of guardianship, given the nature of the court case that followed, the hospital evidently did not feel the same way4 (There are grey areas that arise from this statement, a notable example being the Schindlers numerous attempts
4 In re Helga Wanglie, Fourth Judical District (Dist. Ct. Probate Ct. Div.) PX-91-283. Minnesota, Hennepin County 6

to challenge Michael Shiavo's guardianship of his wife, their daughter; Terri. They would plainly have more of a claim to guardianship than some hospital but the courts decided that Michael had the strongest claim. We may view this as correct on the Rothbardian scheme, Michael being her homesteading guardian) It follows from the natural fact of this guardianship that the hospital's attempt to dispossess Mr. Wanglie of it was an invasion of his property right, a view implicitly supported by the judgement in Mr. Wanglie's favour. If it were the case that she was a potential self-owner, as her rightful guardian, it would be Mr. Wanglie's prerogative not to feed Helga and thus allow her to die. He chose not to do this in accordance with his wifes wishes. Supposing, as we are, that there was a living will, who is obliged by that will? I should suggest that if the signing of it was witnessed by Mr. Wanglie or if it was some sort of contractual agreement between the two, then he would be contractually obligated to carry out her wishes as he would have voluntarily entered into the contract. To determine the onus on the hospital, I shall draw comparisons to Rothbard's discussions of coercion and of abortion. In his analysis of the concept of coercion Rothbard postulates a situation in which there is only one physician in a community wherein an epidemic has broken out. It is held here not to be a coercive act on the physicians part to charge a very high price for his alleviative wares. Further still; he is entirely within his right to simply do nothing or to leave town. This may well be morally contemptible but as a self-owner it is his right and to suggest that he is being coercive is to suggest that it is the right of

the patient or customer and not a coercive act to force the physician to treat them. This would be, according to Rothbard; a justification of the enslavement of the physician. It may here be claimed that by allowing Helga into the hospital in the first place, the doctors entered into an implicit contract to take care of her. I shall draw the parallel with Rothbards view on abortion. As the hospital is claimed to be contracted by the act of allowing Helga entry and commencing care, so it is claimed that the mother is contracted to the foetus when she consented to conception. The claims that follow from this would be that to abort the baby and to expel Helga from hospital property would violate those contracts. Against this foetal contract Rothbard argues firstly that it is not an enforceable contract at all but merely a promise. This would seem to hold true for the relationship between Helga and the hospital. In the second place, Rothbard contends that no such foetal contract could exist as the foetus cannot be considered a voluntarily and consciously contracting entity. This holds true for Helga but not for Mr. Wanglie as her proxy, which will bring us to Rothbards third objection to the foetal contract, namely that the will is inalienable. It is thus impermissible to enforce voluntary slave contracts. As in the case of our sole physician above it would seem that the will of this particular hospital as an entity is inalienable, it therefore cannot be enslaved into caring for Helga just as a mother cannot be enslaved into carrying a child. While it might be the case that this particular hospital has no obligation to maintain Helga, that's not to say that she must certainly die as a result of that. As her natural

guardian, it would be Mr. Wanglie's prerogative to move Helga to a hospital that was willing to do business with them, a move not without precedent. In the case of Baby L a mothers request for life-prolonging treatment for her daughter was refused because the hospital thought the treatment to be futile as well as inhumane. While the court recognized that no physician could be forced to provide a procedure that went against their conscience, it became a legally moot point when the mother decided to transfer the child to a hospital that was willing to do as she asked.5 To summarize; Helga, lacking the capacity for conscious choice, etc., is no longer a self owner. It was an invasion of Mr. Wanglie's property rights for the hospital to try to wrest guardianship away from him but the owners of the hospital were under no contractual obligation to the Wanglies and so would be within their right to expel Helga from the premises. If Helga has a "right to life," it would not entitle her to an enforceable claim to the action of the hospital to sustain her life, such a claim would violate the hospital owners property rights. Thus I conclude that Rothbard may well be morally opposed to involuntary euthanasia but an analysis of his political position with regard to similar morally disputable topics shows that he must concede it's legality under his system.

5 Paris, John J, Crone, Robert K, & Reardon, Frank. (1990). Occasional Notes: Physicians' Refusal of Requested Treatment--The Case of Baby L. The New England Journal of Medicine, 322(14), 1012.

Bibliography Angell, Marcia. (1991). The Case of Helga Wanglie: A New Kind of "Right to Die" Case. The New England Journal of Medicine, 325(7), 511. Feinberg, Joel, Freedom & Fulfillment: Philosophical Essays, Princeton University Press, 1992 In re Helga Wanglie, Fourth Judical District (Dist. Ct. Probate Ct. Div.) PX-91283. Minnesota, Hennepin County Paris, John J, Crone, Robert K, & Reardon, Frank. (1990). Occasional Notes: Physicians' Refusal of Requested Treatment--The Case of Baby L. The New England Journal of Medicine, 322(14), 1012. Rothbard, Murray N., The Irrepressible Rothbard : The Rothbard-Rockwell Report Essays of Murray N. Rothbard, Center for Libertarian Studies, 2000 Rothbard, Murray N., The Ethics of Liberty, New York University Press, 1998