Religious Traditions and Public Policy

בליך, י. "Religious Traditions and Public Policy" JME 1,1, עמ' 17-24.

Religious Traditions and Public Policy

Religious Traditions and Public Policy*

Rabbi J. David Bleich, Ph.D.

If public policy is at all to be informed by religious tradition it must begin with the cardinal religious value: Truth. So fundamental is truth that no religion, and indeed no cognitive discipline, would be conceivable unless truth be assumed as a meta-principle. *

The term “truth” is used in this context not in the sense of truth-telling, but in the sense of truth-recognition. Every moral system recognizes that, under certain conditions, communication of a falsehood is not only devoid of odium, but constitutes a moral imperative. A maniac wishes to know which button, when depressed, will release a nuclear device. In that case the morally mandated response is clear to all; in other situations the same clarity may not obtain. Truth-telling in the physician-patient relationship is a case in point. Curiously, or perhaps not so curiously, it is usually the physician who advocates full disclosure, while the theologian may be quite prepared to clothe the lie with moral sanction.

Although communication of a falsehood to another individual may, at times, be justifiable and even commendable, self-deception ought never to be condoned. Thus, recognition and acknowledge-ment of factual verities must constitute the first step in the formulation of public policy.

With the possible exception of abortion, the establishment of criteria for defining the time of death and the question of withholding treatment from terminally ill patients are the two most widely debated issues in bioethics today. Yet it is a fundamental misperception to regard these as two issues rather than as dual aspects of a single issue.

The ongoing debate concerning adoption of so-called “brain death” criteria involves absolutely no controversy with regard to either factual or ontological matters. Definitions, by their very nature, are tautologies. The common law definition of death as the “total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereupon, such as respiration, pulsation, etc.” does little more than provide verbal shorthand for statements affirming or negating the presence of those phenomena. Those criteria, then, simply establish the truth-conditions which must exist in order to render the proposition “X is dead” a true statement. The truth of the statement lies in the satisfaction of the criteria, nothing more and nothing less.

The term “death” does not denote a state or a phenomenon semantically distinguished from the criteria employed in its definition. The term itself is descriptive rather than prescriptive and hence its use is entirely a matter of convention.

The theologian may speak of death as occurring upon departure of the soul from the body. If so, he is making a highly significant ontological statement. If he further employs the common law definition of death he, in effect, declares that “total stoppage of the circulation of blood, and a cessation of the animal and vital functions consequent thereupon” are merely the physical symptoms of a metaphysical event which cannot be perceived directly. Since metaphysical events are not subject to empirical confirmation or disconfirmation, our hypothetical theologian’s assertion cannot become a subject of medical dispute. Indeed, a logical positivist adopting the verification principle of meaning would say that the theologian assertion is neither true nor false, but is bereft of meaning. Certainly, the clinical physician in urging adoption of neurological criteria of death, does not at all pretend to possess some esoteric knowledge of the perambulation of the soul which is denied to the theologian. Indeed, the physician in question may deny the existence of the soul. Whether or not he commits theological, metaphysical or lexicographical error in doing so is open to debate, but he surely does not commit the fallacy of self-contradiction.

The theologian, if he is inclined to make a statement equating death with departure of the soul from the body, understands the terms in question in precisely the same manner as they are understood by ordinary mortals. He, however, makes an additional assertion which is neither empirical nor descriptive in the physical sense, but which is causal in nature. The theologian asserts the existence of a causal connection between the physical events denoted by the term “death,” viz., “total stoppage of the circulation of blood, and a cessation of the animal and vital functions consequent thereupon” and the metaphysical phenomenon of the soul’s departure from the body. I do not know whether our theologian intends to assert that it is the metaphysical event which is the cause of the physical effect or, conversely, that it is the physical phenomenon which causes the metaphysical event. We may presume, I believe, that there is little theological import in resolving the question of “Which came first, the chicken or the egg?”

But the association of chickens and eggs has profound import in fowl husbandry and one may similarly presume that the putative departure of the soul from the body at the time of death is not without theological ramifications. Thus, one understands why, for the theologian, use of the term “death” involves more than a mere convention. To be sure, the theologian well recognizes that words derive meanings through common consensus. However, were the term “death” to be used in common parlance solely as a synonym for the onset of rigor mortis, he would be constrained to coin his own term (perhaps “meta-death” or “soular death”) for the use as a needed verbal shorthand in theological and moral discourse, and in the process he would perforce augment the esoteric jargon of his discipline.

The foregoing is intended neither as a theological excursus nor as a tongue-in-cheek manner of exposition by means of trivialization. The point is clear: Definitions are tautologies. Definitions are conventions. Hence definitions are not subject to dispute other than in the purely lexicographical sense of dispute about how words are actually used in common, scholarly or scientific parlance.

Definitions do no more than facilitate communication. Having agreed to use certain words to denote certain persons, things, places, or phenomena we must then decide what we want to say about them. A “table” is defined as a “smooth, flat slab fixed on legs.” Fine, but nothing in that definition compels anyone to put food upon the table at meal time, or to use the table as a surface upon which to support writing materials. Assuredly, knowledge of the meaning of the word “table” does not dispatch any person to a furniture store to buy a table posthaste. Man is defined by Aristotle as a rational animal. Yet acceptance of that definition does not compel the conclusion that cannibalism is odious or that carnivorous behavior is morally acceptable. The moral judgment that homo sapiens should be accorded certain privileges and immunities must be established on grounds which are other than semantic in nature.

Let us assume, arguendo, that dolphins are rational creatures. Would it then follow that dolphins are human beings? Neither the zoologist nor the man in the street would answer in the affirmative. Would dolphins be entitled to nondiscriminatory treatment together with fellow rational creatures, i.e. homo sapiens? An Aristotelian moralist might well answer this question in the affirmative. It would turn out that, for him, rationality is not the definition of humanity but the sufficient criterion for certain treatment. The question of dignity, privileges and immunities to be accorded members of various species within the animal kingdom is a matter falling within the province of moral philosophers, theologians, legislators and jurists. Pinpointing the physical or cerebral attributes which distinguish various species from one another is the task of the zoologist. Reporting how words are used in either common or scholarly discourse, whether such words be used with precision or imprecision, is the task of the lexicographer whose conclusions constitute a non sequitur insofar as scholars in other disciplines are concerned.

The definition of the term “death” is no different from the definition of any other term. The task of defining the term properly belongs to a lexicographer whose findings are essentially reportorial in nature. Other than in an Orwellian 1984 society fin (which we may well be living) definition by means of legislative fiat is nonsensical. More significantly, the act of definition provides no basis whatsoever for moral conclusions of any nature. To be sure, common usage, which serves as the progenitor of any formal definition, may reflect a vox populi moral stance which influences language usage. However, it can hardly be claimed that there must exist a necessary causal connection which mandates the inference of a moral cause from a semantic effect. Moreover, even were that to be the case, any argumentum adgentem of such nature would of necessity be subject to scrutiny through the prism of moral theory.

There is nothing mysterious or mystical about the use of most words in human discourse. Nor, with regard to most words, is there anything arcane about the parameters of usage – and hence the definition-of any given term. The common law definition of death is nothing more than the adoption for legal purposes of the term as it was-and continues to be-used in common parlance. To be sure, that definition is a tautology – as is every definition. But words are assigned certain meanings because they are needed as a form of verbal shorthand for the communication of concepts. The term “death,” particularly as predicated of human beings, was made synonymous, not with decomposition of the body, the onset of putrefaction, or with rigor mortis, but with the cessation of respiration and cardiac function, precisely because it is at that stage that the human organism is beyond medical treatment. As such, it is no more than an empirical statement, devoid of any value judgment. Moralists of bygone ages were perfectly capable of debating the issue of euthanasia, both active and passive, despite this definition-or better, because of the definition. It is precisely because death is defined in terms of criteria which reflect the empirical impossibility of continued medical treatment that there is room for debate concerning withholding of treatment (passive euthanasia) or overt “negative treatment” (active euthanasia) at a stage prior to death when treatment, both positive and negative, is yet efficacious.

Time of death statutes are not lexicographical exercises. Any attempt to categorize them as merely legislative reflection of more precise language usage is an act of intellectual or moral dishonesty and possibly both. Neither is it correct to state that such statutes reflect advanced scientific knowledge and expertise. It must be emphasized that there is absolutely no medical, scientific or factual issue involved in the “time of death” controversy.

Definitions for legal purposes do not – and need not – reflect common usage. A definition for statutory purposes is designed to influence, not speech, but conduct. Adoption of neurological criteria of death for legal purposes generates a legal state in which a patient manifesting such criteria enjoys the rights, immunities and privileges, not of a human being, but of a corpse. It is a statement, not of ontological fact, but of how society wishes to treat a human being in that particular physiological state. This is no more than the legislative embodiment of a value judgment. Essentially, it is a decision to withhold treatment from a person manifesting a given clinical profile. It is not a judgment that further medical treatment will be of no avail. There is no requirement, legal or moral, that a physician must employ therapy which is entirely useless and represents nothing more than an exercise in futility. It is precisely because the patient is not beyond medical treatment that a determination not to employ treatment is advocated, i.e., it is precisely because bodily functions, including, but not limited to, cardiac activity and body metabolism, can be preserved by continued medical treatment that a decision not to treat is advocated.

The term “Time of Death Statute” is a misnomer. The only accurate term is “Withholding of Treatment Statute.” The sole question worthy of debate is: Should treatment be provided for an irreversibly terminal patient who manifests clinical symptom x, y or z?

That question poses a moral issue, not a question of medical fact or judgment. The physician is uniquely qualified to diagnose illness, to describe the physical damage suffered by the patient, to make a judgment with regard to the probable prognosis and to assess available modes of therapy. But, subsequent to determination of those clinical matters, the decision to treat or not to treat is a value judgment, not a medical decision.

Adoption of a brain death statute is nothing other than a moral judgment to the effect that there is no human value which augurs in favor of the preservation of the life of an irreversibly comatose patient. That is a question with regard to which reasonable men may differ. It is certainly a question with regard to which religious traditions have differed.

The attempt to justify withholding of treatment under the guise of redefinition of terms is a thinly-veiled attempt to secure moral and emotional approbation for a policy which would otherwise be greeted with repugnance and even indignation. It is the deeply held conviction of many, and probably of the majority, that all human life is sacred and inviolate. Withholding of treatment has the effect of snuffing out human life. Any ad hoc decision to act in such a manner involves a great deal of soul-searching and frequently engenders feelings of guilt. On the other hand, no one advocates medical treatment or continuation of life-support systems for a corpse. Pronouncing a person dead has the emotional effect of removing any aura of further moral responsibility. Such a process is, however, intellectually dishonest. In a less than fully informed world lexicographical sleight of hand may affect popular perception, but it should not be permitted to affect the universe of moral discourse.

The argument in favor of withholding treatment from the irreversibly comatose patient can be formulated in one of two ways. It may be asserted that such life is entirely devoid of value and of no moral significance. There are some who would clearly espouse such a position. Those who do so bear the burden of formulating in a clear and precise manner the necessary attributes of humanhood which are correlative with human life endowed with value and moral significance. There is surely no reason for accepting neurological dysfunction as the sole point of demarcation serving to distinguish between life which is morally significant and life which is devoid of value. It is no accident that many of those who adopt the radical “no value” approach are quite willing to accept other quality of life tests and to adopt the position that in absence of a certain quality threshold, preservation of life is not a value and generates no imperative. They then differ among themselves only in regard with the nature or threshold of the quality of life which is to constitute the dividing line.

If religious traditions exercise any meaningful role in the formulation of public policy it is in the presentation of a value system against which proposed policies must be evaluated. It would, of course, be incorrect to assume that all religious traditions speak with one voice with regard to every aspect of any broad moral issue. Nevertheless, universal affirmation of the sanctity of human life in all of its guises is the cornerstone of all religious teaching. The isolated utterances of some theologians which may lend themselves to such interpretation notwithstanding, it is difficult to find a religious figure of standing who would accept the thesis that any human life is utterly devoid of value. Were adoption of the policies under discussion to be possible only if predicated upon a value judgment negating the sanctity of such life, those policies would be in opposition to the traditions and values propagated by the world’s major religions over a period of millennia.

However, the argument in support of withholding treatment from an irreversibly comatose patient may be formulated in an entirely different manner. It is not necessary to deny the moral value of human life even in a moribund and non-sentient state in order to advocate, in a morally cogent manner, a policy of non-treatment. Arguably, such a policy might be justified on the grounds that it is designed to further other values which, at least under the given circumstances, are more compelling.

A moral system, by virtue of its very nature, must posit a set of values. Yet no moral system can demand that its adherents promote each and every value in every conceivable situation. Truth-telling is a value. But surely, all ethicists would agree that not only is telling a lie in order to conceal the location of a dangerous weapon from a madman not a violation of any moral code, but is morally mandated. Every moral maxim must be understood as qualified by a ceteris paribus clause. The posited value is clearly a moral desideratum and in a Utopian universe would always be achievable. But in the real world, moral values are frequently in conflict with one another in the sense that not all moral values can possibly be pursued or achieved simultaneously. Insofar as the example of the madman and the dangerous weapon is concerned, both truth-telling and preservation of life are values which ought to be promoted. But it is impossible to have one’s moral cake and to eat it also. Truth-telling in that situation will result in loss of human life. Preservation of life will entail a lie.

What does a moral agent do when two values come into conflict with one another? Every system of ethics must either establish a hierarchical ranking of the values it posits or must formulate canons for decision-making which enable a moral agent to adjudicate between competing values. When the conflict is between truth-telling and preservation of life the dilemma is readily resolvable. Assuredly, in a system of weighted values, a white lie pales into insignificance when measured against the value of human life.

In other situations the resolution of conflicting claims that arise from competing values is far less obvious. The Declaration of Independence speaks of men as endowed by their Creator with certain “unalienable rights,” a phrase which is synonymous with what philosophers speak of as principles of natural law. The underlying notion is that every individual is created by God and endowed by Him with certain prerogatives which are inalienable in nature. Those rights, in the eyes of our founding fathers, include “life, liberty, and the pursuit of happiness.” In the philosophy of John Locke this notion was phrased a bit differently. Locke spoke of life, liberty and the enjoyment of property. To the American mind, the concept of happiness is apparently reducible, at least in part, to enjoyment of property. The “unalienable rights” of which the Declaration of Independence speaks represent fundamental values. Individuals are endowed with life and have a God-given right to have that life safeguarded and protected. Individuals are endowed with liberty, and no person ought to interfere with the personal autonomy of any other human being. Individuals are entitled to the pursuit of happiness and to the undisturbed enjoyment of their property.

However, in the real world, the value known as preservation of life frequently comes into conflict either with happiness or with its analogue, preservation of property. After all, society has access only to a finite amount of material resources, or so we are told. What happens when preservation of life simply costs too much? Preservation of life may be deemed to cost too much in terms of the expenditure of resources and services in prolonging that life. Alternatively, preservation of life may cost too much in emotional coin, because the patient is in pain, the family in a state of anguish, or the physicians experience frustration because, their diligent ministrations notwithstanding, they are incapable of effecting a cure. What happens when a conflict arises between preservation of life and promotion of happiness? Happiness and elimination of pain are, after all, but two sides of the same coin. In the real world such values often come into conflict with one another.

Well-intentioned individuals may differ with regard to the proper resolution of such dilemmas. Different religious traditions have certainly presented divers answers. A moral system which distinguishes between “ordinary means” versus “extraordinary means” or which sanctions the withholding of “heroic measures” has not rendered a decision that human life which requires heroic measures or extraordinary means for its preservation is of no moral value. Rather, it has recognized that certain factors render the mode of treatment heroic or extraordinary by virtue of the fact that those factors represent other values which must be compromised or sacrificed in order to preserve the life in question. The pain and suffering, or even the inconvenience involved, may be such a confliction value. The sheer cost of treatment may constitute such a value. The emotional distress and suffering caused to others may be such a value. A position which states that a woman suffering from cancer of the cervix need not submit to a gynecological examination at the hands of a male physician asserts that preservation of feminine modesty is such a value. In each instance the sanction provided for withholding treatment involves a decision that preservation of life is indeed value but is, in effect, but one value among many. Hence, under certain circumstances, preservation of life is rendered subservient to preservation of other values.

It is clear that the Catholic tradition asserts that preservation of life is but one value among many. Jewish tradition, on the other hand, teaches that preservation of life is of paramount value and that virtually all other values are rendered subservient to the transcendental value of preservation of human life.

Certainly, public policy should recognize that different religious systems resolve moral dilemmas in different ways. It is established public policy in our country that diverse systems of religious values be recognized and accommodated. Indeed, such accommodation is constitutionally mandated save in the face of compelling state interest. In manifold areas pertaining to employment, education and family law such accommodation is required by virtue of legislative fiat and/or judicial mandate. Diverse value systems are certainly entitled to the same recognition and accommodation in matte pertaining to bioethical issues.

Recognition of the claims of diverse religious traditions is essentially a matter of civil liberty. For this reason it is certainly arguable that the State should not interfere with an individual’s right to be treated as a living human organism even though he may be comatose or be in a so-called vegetative state, but that the State is under no parallel obligation to force treatment upon such persons against their previously announced will. Nor is the State necessarily compelled to treat the termination of the life of such a person as an act of homicide to be punished in the appropriate manner set forth in the penal code. The State need merely acknowledge that it respects and accommodates the religious and moral beliefs of all of its citizens and will not treat a person, or allow him to be treated, in a manner which is repugnant to him. Of course, one who interferes with the legally protected civil liberties of another is a lawbreaker. But society may well declare the appropriate punishment to be that which is prescribed for violation of civil liberties, rather than that provided for homicide. Thus there is no anomaly between adoption of neurological criteria of death in a criminal code and incorporation of a so-called “religious exemption” provision in other areas of law.

The selfsame principles of liberty and personal autonomy as well as the provisions of the Free Exercise Clause of the First Amendment should serve to guarantee that even when statutes provide that neurological criteria may be employed for purposes of pronouncing a patient dead or, more accurately, that neurological criteria may be employed for purposes of withholding further treatment, such criteria should not be utilized for the purpose of removing or denying life-support mechanisms in violation of a patient’s religious or moral convictions.

To be sure, the first amendment has long been understood as providing absolute immunity with regard to matters of religious belief but not as providing absolute license in matters of religious practice. As early as 1879 the Supreme Court ruled in Reynold vs. United States that a free exercise claim could not be asserted as a defense against prosecution for violation of the statutes prohibiting the practice of bigamy. Yet not every state interest or concern can justify the placing of a burden or restriction upon the right to practice one’s religion freely. Thus in Schneider vs. State the Supreme Court ruled that the state’s interest in preventing the littering of public streets cannot justify a municipal ordinance which would effectively ban dissemination of religious literature. More recently, in Sherbet vs. Verner, the Supreme Court ruled that the state must ordinarily grant exemption from provisions of law in order to permit the free exercise of religion. Once a claimant has shown that the challenged regulation imposes some significant burden upon the free exercise of his or her religion, it becomes incumbent upon the state to demonstrate that the regulation, or the denial of an exemption, is necessary in order to protect a compelling state interest. Such accommodations can be denied, the Court declared, only in the face of “some substantial threat to public health, safety, peace or order.


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