- Jong-sik Reem, Ph.D.
101-1104 Hyundae Apt., Taechi 2 Dong, Kangnam-ku
Seoul, South Korea
Physician assisted suicide may be divided into two types. The first is the case in which the patients wish to die but are physically unable to kill themselves. This case is structurally equivalent to the case of active voluntary euthanasia. The other type is the case in which the patients are physically able to kill themselves but want a physician's help in order to die with dignity. Kevorkian's case falls under the second category. When he used a carbon monoxide delivery system to help a suffering person die, all he did was to place a mask over the person's head and tie a string that activated the machine to the person's finger. He let the person pull the string. He "argued that his true intention was to relieve suffering, and this argument evidently gave the jury grounds for an acquittal."(1)
Allies of Kevorkian say that "intending to supply the means that causes death" is one thing and "intending the death to occur" is another. For example, Joseph Ellin defends Kevorkian's position, maintaining that "the intent with which he acts in connecting patients to his suicide apparatus is that these patients be able to kill themselves if they so desire. This is not the same thing as intending "that death occur" " (2). Ellin seems to think that a distinction between supplying the means for something "with the intention that they may be used" and "with the hope that they may be used" supports his claim (3). If Kevorkian supplies his machine with the intention that it may be used, he intends that death occur. However, he supplies it just with the hope that it may be used. So, he does not intend that death occur. Thus, according to Ellin, the means used for murder in Kevorkian's cases might not be "intending that death occur" but "intending to enable the patients to kill themselves."
In this paper, I wish to show that Ellin's claim is hardly acceptable. I will attempt to show that those who wish to defend Kevorkian cannot retain their position by emphasizing the difference between wanting (desiring or, in Ellin's word, hoping) and intending.
I am inclined to agree with Ellin's view that wanting or hoping is not a proof of intending. If hoping is a sufficient condition for intending, it follows that if Kevorkian supplies his machine with the hope that it may be used, he supplies it with the intention that it may be used. Thus, if wanting is sufficient for intending, Kevorkian, in Ellin's view, intends that death occur. But Ellin is right in thinking that wanting is not sufficient for intending. One may not intend what one wants to do or what one wants to be. I may want something even though I know that it is beyond my ability. I am curious about how Thales appeared. I may want to go back to the era of the Ancient Greeks. But it is clearly not the case that I intend to do so; for, intention, unlike wanting or hoping is sensitive to perceived possibility.
However, even though wanting is not sufficient for intending, this does not none the less suggest that Kevorkian does not intend that death occur. There are many pairs of cases in which there is no difference between supplying the means for something "with the intention that they may be used" and even 'without the hope that they may be used" , let alone "with the intention that they may be used" and "with the hope that they may be used." Consider a pair of hypothetical cases presented by Philippa Foot in the light of Ellin's view: The case in which some merchants sell poisonous cooking oil in order to earn their living; and the case in which some unemployed gravediggers sell the same oil in order to create orders for graves (4). The gravediggers supply the means (selling of the poisonous cooking oil) in order to create orders for graves with the intention that the people who bought the oil consume it and die. However, it is not the case that the merchants supply the means with the hope that the people who bought the oil ingest it or die from consuming it. All they want is just to sell the oil and thus earn their living. They might wish that those who bought the oil not ingest it. Even though the people may throw it away, the merchants fulfilled their goal of making profit. Reflecting on these two cases in the light of Ellin's view yields the result that the merchants, unlike the gravediggers, do not intend the death of those people. But, how can we say that the means used in the merchants' case might not be intending that death occur? No allies of Kevorkian would say that those merchants are different from the gravediggers.
Of course, there is a difference between the gravediggers'(merchants') case and Kevorkian's case. In Kevorkian's case, the sufferer want to be supplied with the means (i.e., to be provided with the suicide machine); but, the victims in the gravediggers'(merchants') case do not want to buy poisonous oil. However, this difference does not put aside the objection to Ellin's claim. There are cases in which one supplies the means for something with the hope that they may be used and the victims want one to supply the means, but can hardly be distinguished from the cases in which one supplies the means for something with the intention that they may be used. For instance, the drug addicts want the dealers to supply the means (say, cocaine). The dealers do not have to supply cocaine with the intent that it may be used. They might supply it just with the hope that it may be used. Suppose that some dealer has sold cocaine to some addict, knowing that the prolonged and repeated use can cause death, and suppose that the addict died of convulsions which were produced by the prolonged and repeated use of cocaine. In this case, how can we say that the means used for murder might not be intending that death occur?
One might say that the fact that it is not Kevorkian but the patients themselves who push the button or pull the string of Kevorkian's machines, supports Ellin's claim (i.e., Kevorkian did not intend the deaths of his patients but to enable them to kill themselves). However, in my view, this will not do either. Many counterexamples can be provided. In the drug addict case, for instance, despite the fact that it is the addict themselves who use cocaine, the dealers no doubt intend the deaths of the addicts. Gravediggers' case is the same. Although it is the people themselves who consume the poisonous oil, it is quite counterintuitive to say that gravediggers do not intend the deaths of the people.
Someone who wishes to defend Kevorkian's position has to go further than merely emphasizing that wanting is not a sufficient condition for intending. One way is to show that wanting is a necessary condition for intending. That is, allies of Kevorkian might provide the following valid form of argument: (1) Wanting is a necessary condition for intending; (2) Kevorkian does not want death to occur; (3) Therefore, Kevorkian does not intend that death occur. Truth of line (3) depends on the truth of line (1) and (2). Line (2) of the argument strikes me as being true. If his patient survives somehow even though he gives potassium chloride, he would feel that the patient's survival would ruin his plan. So, he would increase the dose or try a different kind of poison. However, the reason why Kevorkian provides his machine is not because he wants the deaths of his patients but because there are no other ways to save them from further pain. If there are, he would not provide the machine.
However, the trouble is that line (1) can be rejected. There seem to be cases in which one intends something without thereby wanting it. Consider, for example, the terror bombing case which is structurally equivalent to Kevorkian's case. The bombers' desired end is to terminate a war earlier by weakening the morale of the enemy, thereby reducing the human and economic losses involved in a war. Even though the bomber will change his objective if he finds that no civilians are in the building he plans to bomb (for he cannot realize his end without ensuring the deaths of the civilians), he does not in the strict sense want to kill them. If he could have a disheartening effect on the enemy's morale without killing the civilians, then he would not kill them. The reason why he kills the civilians is not because he wants to kill them but because he cannot realize his ends without killing them. However, it is quite counterintuitive to think that the terror bomber does not intend the deaths of the civilians. Hence, line (1) strikes me as being false. Thus, the allies of Kevorkian cannot retain their position by relying on the above argument, for the line (1) permits too much. It give them an unwanted result, that is, it yields the result that even the cases such as the terror bombing case are permissible.
Another way to save Kevorkian from the criticism that he intends the death of the patient is to show that the death of the patient is merely a foreseen side effect of saving the patient from further pain (5). There is a consensus as to how the distinction between means and side effect (or concomitant) should be drawn. Philosophers such as G. E. M. Anscombe, Charles Fried, Jan Narveson and Joseph Boyle agree that the principal difference hinges on the agent's intention: One intends the means to one's end but does not intend the side effect. If Kevorkian, as Ellin claims, does not intend the deaths of his patients, and thus if they are not the means of saving them from pain, then they should be counted as side effects. Now what we need to know is how "not-wanting a bad effect" stands in logical relation with "bringing it about as a side effect." For, if the former is a sufficient condition for the latter, then one might provide the following valid form of argument in favor of Kevorkian's position: (1) "Not-wanting a bad effect" is a sufficient condition for "bringing it about as a side effect" ; (2) Kevorkian does not want the death of his patient; (3) Therefore, the death of Kevorkian's patient is not an intended means but merely a foreseen side effect. As stated, line (2) is true. So, the truth of line (3) depends directly on the truth of line (1). However, our intuition goes against saying that if one does not want a bad effect of one's action, one brings it about as a side effect.
Let us consider the following case. "[A] judge or magistrate is faced with riots demanding that a culprit be found for a certain crime and threatening otherwise to take their own bloody revenge on a particular section of the community. The real culprit being unknown, the judge sees himself as able to prevent the bloodshed only by framing some innocent person and having him executed." (6). According to our common sense and intuition, the judge should not execute the one innocent person but allow the larger group to die. If the judge save the larger group, the judge no doubt intends the death of the one innocent person. However, it is clearly not the case that the judge wants it. The terror bombing case leads to the same conclusion. Thus, there are cases in which one does not bring about a bad effect of one's action as a side effect but one does not want it. That is, line (1) is false. Thus, allies of Kevorkian cannot retain their position by resting on the above argument. If one, by resting on the above argument, views the death of Kevorkian's patient as a side effect of saving the patient from further pain, one must regard the death of the one innocent person in the above case as a side effect of saving the larger group. Likewise, one must also regard the deaths of the innocent in the terror bombing case as a side effect.
1. Ellin J. "Assisting Suicide in
Michigan", Bioethics 10 (1996), p. 57.
2. Ellin, p. 68.
3. "In an earlier Michigan case, the dependent gave a gun to someone who had expressed a drunken boast that he would kill himself if only he had a gun; the Michigan appeals court distinguished between applying the means for suicide with the intent that they be used, and supplying the means with the hope that they be used, holding the latter was insufficient means used for murder" (Ellin, pp. 68-69).
4. Foot P. 1967, "The Problem of Abortion and the Doctrine of Double Effect", The Oxford Review 5 (1967), 28-41. Page references are to the article as reprinted in her Virtues and Vices (University of California Press: Berkeley and Los Angeles, 1978), p. 22.
5. One might say that the deaths of Kevorkian's patients are not the effects of Kevorkian's acts: It is the patients themselves who push the button or pull the string of Kevorkian's machine. However, it seems that it is not. For example, if Kevorkian had not connected Janet Adkin to suicide machine in June 4, 1990, she would have died at least after June 4, 1990. Strictly speaking, her death at that time was caused by Kevorkian's act of connecting her to his machine.
6. Foot P., ibid 23.