Kevin T. Keith
The Graduate School, CUNY

Patient autonomy, most agree, stands primum inter pares among the principles and general tenets of bioethics. This is understandable; not only was autonomy granted prominence in the "principlist" approaches of foundational bioethical theorists, but it echoes the individualism and emphasis on the rights of individuals that marks American society. Currently, autonomy is seen as, if not precisely trumping other ethical considerations, at least being a presumptively decisive consideration, to be overridden only in the face of clearly unanswerable objections grounded on competing principles. No victory is ever absolute, but advocates of strong patient autonomy have seen the medical decision-making landscape change dramatically in their favor in barely more than a single generation. Controversies remain, but neither advocates nor critics of strong autonomy will deny that the pendulum has swung far, and quickly.

None will claim, though, that assertions of autonomy are unchallengeable. Autonomy was never, even for its strongest advocates, synonymous with uncritical deference to any imperative utterance any patient might happen to spit out, nor was the self-governing privilege of individuals understood to obtain for all human beings regardless of context, competency, or competing interests. Limitations on and impediments to the practical exercise of autonomy were a focus of philosophical investigation long before the concept took its central place in bioethics. Building on this work, bioethicists have recognized from the beginning that the capacity for autonomy is relative to some cognitive threshold (variously described), and that the impact of knowledge deficit, impaired mental capacity, fear or confusion, coercion of various kinds, and other factors, can affect that capacity. Ethical values and principles in competition with autonomy are understood to have their own proper place; it is widely agreed that autonomous decisions may be overridden in cases of conflict with other individuals or the general welfare, and that certain social policies (e.g., immunization, communicable-disease reporting) may void the objections of autonomous individuals. Thus, autonomy has always been seen as a capacity to be exercised in context, subject to limitation, on sufficient grounds, by other considerations. With limiting constraints such as these in mind, advocates of strong patient autonomy could accept that some patients’ decisions, even fervently and honestly expressed decisions, did not warrant automatic allegiance by caregivers.

Gradually, a richer appreciation of the boundaries and content of appropriate patient autonomy was developed. The criticisms of autonomy skeptics served, helpfully, both to sharpen understanding of the role and limits of autonomy, and to establish a balance between autonomy as a value in itself and the practical vicissitudes of healthcare decisionmaking in challenging and complicated circumstances.

Until recently, this balance prevailed, if somewhat uneasily. Though controversies continued over the nature and proper limits of patient autonomy, autonomy advocates accepted that there should be such limits in principle, and agreed with critics on some of the appropriate factors justifying them. These factors, as discussed above, had to do with the context of decisionmaking, patients’ cognitive capacities, or the existence of competing moral considerations. Autonomy advocates could and did acknowledge the legitimacy of principles other than autonomy, and could carry on a debate over their significance and impact while still accepting them as part of an appropriate balance of moral values. That the objections and considerations raised by critics were well-considered, good-faith reflections on the nature of autonomy made this debate both necessary and possible, and gave moral weight to the resulting balance of values.

A Thumb On The Scale

That balance has been tipped in the past decade. A new tone and a new trend have emerged in the debate over the proper balance of autonomy and competing values. The stridency of the criticisms arising in the early 1990s prompted Robert M. Veatch to write, in 1996: "We are in a period when it is as fashionable to attack the primacy of autonomy as it was only a few years ago to assume its priority." One might think that some new front had opened in the debate between autonomy advocates and critics. The weaknesses of autonomy theory had been well-explored long before the mid-1990s, however, and well-founded criticisms had to some extent been incorporated or compensated for within the continually evolving conception of patient autonomy. Mere continued debate on the merits should not have generated much new controversy.

What appeared in the 1990s was not simply a new examination of autonomy’s limitations. Some critics, apparently either feeling they had given too much ground or seeing an opportunity for practical action, gave vent to an antagonism toward autonomy that seemed closer to visceral animosity than to philosophical skepticism. Across the arena of moral conflict, from scholarly discussion to litigation to legislation, a sudden eruption of by-any-means-necessary anti-autonomy hit-and-run praxis burst forth in the early 1990s and continued through the decade. Autonomy came under sustained onslaught, through means more appropriate to a political campaign than to ethical discourse with patients’ lives and freedom in the balance. A certain self-justificatory tone is common in practical politics; we rarely see committed partisans change positions on principle alone, and we don’t expect to see it. We know to discount claims made in campaign speeches, and we expect the truth on any issue to lie somewhere other than candidates, or lobbyists, or interested parties may tell us it does. But ethicists trained in a scholarly tradition operate under an expectation of intellectual rigor in their debates: that conclusions will follow from arguments, and not the other way around; that principles will be invoked because they are believed, and believed because they are right; that one may possibly be convinced of the other’s position, and may hope the other can be convinced of one’s own. Now, though, the uncertainties of the debate over autonomy have been eschewed by some, in favor of a political end-run, camouflaged in the language of ethics. The conclusions that had previously been debated on grounds of fact and principle are now simply asserted, to peremptorily remove the barrier that autonomy had presented to the imposition of particular, chosen moral practices.

An articulate example of the new tone in arguments over autonomy comes from Daniel Callahan. His 1996 essay "Can the Moral Commons Survive?" is simultaneously an anti-autonomy ululation and an open plea for weapons of any kind to wield against this foe:

"Perhaps nothing has so exasperated me over the years as the deference given in bioethics to the principle of autonomy…

What is… disturbing, is the preemptive role it too often has come to play, and with that a distressing exclusionary function…

I locate the main problem in what I take to be the working public policy axiom of autonomy. If someone wants something, and no direct harm can be shown to result, then he or she should be allowed to have it… Moreover, because of the cultural power of autonomy there is often little incentive to look hard for possible harms or, even if some can be identified, to let them take precedence. Every benefit of every doubt is given to autonomy…

Can an effective counterweight be found at least to offer autonomy some serious competition? Or, since most of those who espouse principlism hold that the principles can and should conflict with each other on occasion, how can that be made to happen more in practice?…

Overrun with claims of autonomy, we are losing the moral commons in medicine. Nothing seems more important than to regain it.

Callahan particularly bemoans the apparent precedence of autonomy over communitarian or public-welfare considerations; in this he is not alone, and certainly a reasonable argument can be made along those lines. But Callahan’s cri de coeur, intentionally or not, betrays the emotion that drives the arguments he appears to be making. He is "disturbed," "distressed." He is "exasperated" as hell by autonomy and he’s not going to take it any more. "Who," he cries, "will rid me of this meddlesome principle?" and he then takes on the job himself. For it is the downgrading of autonomy that is his explicit aim and end. "Nothing seems more important…" Though he speaks the language of ethical analysis, he passes over discourse to reach the stage of practical action. He casts about, not for greater understanding or for compelling argumentation, but for the decisive tool which will attain the end he has already fixed upon. He deliberately instigates conflict with the set intention of imposing a barrier to autonomy; he seeks "an effective counterweight," and searches for distant harms for the purpose of adding weight to the anti-autonomy side of the scale. Instead of weighing and balancing, Callahan seeks to tip the scales, using whatever comes to hand for the purpose, and openly announces his intention to do so. Yet that announcement is couched in the investigational language of scholarly discourse: "locate the problem…look hard… shown to result… [evidence] be found… principles [in] conflict…" It is possible to believe he is engaged in ordinary argumentation, but it is not that. It is an exercise in suasive rhetoric—a stump speech in the campaign to roll back individual autonomy in deference to moral claims of broader scope.

Callahan offers examples of particular issues he feels have been distorted by an over-emphasis on autonomy. Regarding assisted fertility "the autonomy of the would-be parent has de facto triumphed over all moral objections. It has been hard to prove long-term harm…and even harder to make the case that those possible harms should override individual choice." Here he advocates an explicit search for harms of a particular type, to count as evidence against exercises of autonomy he disapproves of. He mentions no parallel search for evidence pointing in the opposite direction. Callahan objects that anonymous sperm donation "is a way of downgrading fatherhood and of violating a basic moral principle." Well enough (though few seem to agree with him), but to dismiss contradictory considerations, such as an evenhanded analysis of harms, or the value of patient autonomy, seems too much to ask.

And there is the point. Callahan is not asking us to consider his view, still less offering an argument why harm analysis, or assertion of autonomy, fails on philosophical grounds. He is now simply inviting those who already agree with him to find "counterweights" to stack up against autonomy. He invents two competing principles to be weighed in ethical decision-making—"the ecological principle" and "the vital institution principle," both of which have communitarian overtones—and offers a brief, respectably philosophical defense of each. But he introduces these principles immediately after asking, and specifically as the answer to, his own question "how can [conflict between autonomy and other principles] be made to happen more in practice?" No longer are arguments offered because they express truths grounded on principles; arguments are openly sought and offered because they defend principles grounded on preferences.

The Gathering Storm

As this approach invades debates over autonomy, the issue takes on aspects of the ongoing US conflict over abortion. No one now pretends that there is any rational public discourse on that subject, and the various arguments, slogans, ads and pleas offered on all sides merely serve the goals of creating political capital, or of sub-cognitively swaying potential voters or legislators. The content of such discourse is intentionally manipulative—it is "PR," not discussion and certainly not ethical philosophy. Luckily no one has yet gone to the length of bombing medical clinics where patient autonomy is respected, but in other ways the growing backlash against autonomy shows a familiar, grimly partisan allegiance to deeply held and rarely examined moral values.

The section above, questioning Daniel Callahan’s self-professed anti-autonomy project, is not intended to cast aspersions on a particular person. The selection quoted was chosen for emphasis because of its especially stark expression of the author’s intended ends, and because of the revealing way Callahan flirts with openly partisan activism, then retreats to a scholarly, but no less self-conscious, mode of discourse. A respected founder of modern bioethics now encourages his followers to seek evidence for only one side of a debate, to seek "counterweights" to tip an established balance, to find "incentives" to grant precedence to one chosen source of values over another, to adopt proposed new principles specifically because they hold out the prospect of conflicting with an existing, unwelcome one. This is scholarly rigor wielded as a rhetorical device, rather than as an investigative tool. It is not surprising that Robert Veatch’s comment, on the "fashionability" of attacking autonomy, was a direct response to Callahan’s essay. The same approach is taken by many others, however. The scope and nature of the resurgent backlash against autonomy becomes clear on inspection.

Example: In oral argumentation before the Supreme Court of the United States, in the case of Washington v. Glucksberg (argued simultaneously with the better-known Vacco v. Quill), the Senior Assistant Attorney General of Washington State addressed the question whether patients have a "liberty interest" in access to physician-assisted suicide. He stated that the claim that there is such an interest "…is inconsistent with liberty in three respects. First, it is limited to very few of our citizens [i.e., those who want to die]. Secondly, those few must justify their exercise of this… right. Thirdly,… this right… must be closely regulated." Thus, the fact that the liberty in question will not be exercised by every citizen in unbridled fashion is sufficient justification for no such liberty being recognized at all. This convenient rationalization is the more puzzling when it is noted that two of the barriers which are presented to the Courts recognition of this liberty interest arise from actions of the state government itself: thus, because the state government limits its citizens’ liberty, the citizens cannot be recognized as having liberty interests. Further still, the argument went, recognizing such an interest would hamper the states’ power to regulate the liberties of their own citizens: "in fact, our sister state of Oregon has done just that… A recognition of a liberty interest [by the Court] may limit their flexibility to deal with this complicated area." This argument is particularly startling in light of the fact that Oregon was "dealing with" physician-assisted suicide by legalizing it. Washington passed a referendum prohibiting physician-assisted suicide, which the Attorney General came before the Court to defend, citing Oregon’s law as justification for Washington’s own. From a Constitutional point of view, it may indeed make sense to argue for states’ rights to legislate as they see fit, but from the perspective of argumentative chutzpah, Washington’s approach is breathtaking. Liberty must be absolute or it is prohibited (and since it cannot be absolute, because the state has decreed so, it must be prohibited); Washington must have the right to deny its citizens’ liberty to make certain decisions, lest citizens lose the liberty to make their own decisions; the liberty of Oregon’s citizens is evidence of the need to deny the "liberty interest" of the citizens of Washington. Of the various grounds available to defend a state’s right to regulate assisted suicide, to claim that the state’s prohibition is a defense of the citizens’ liberty seems almost perversely cynical.

Example: The Linacre Center, a Catholic think-tank in the United Kingdom, published a 1998 response to the British Government’s influential white paper on euthanasia. Among its claims:

"‘Best interests’ should be understood to include standard objectives of healthcare practice: restoration and maintenance of health… prolongation of life, and the control of symptoms when cure cannot be found. It is in serving these ends that doctors serve the good—and therefore the best interests—of their patients."

By this definition, patients cannot determine their own best interests (since good is an objective health state, and not the realization of the patient’s values or personal goals). Patients also cannot rationally object to any medically "necessary" treatment as being opposed to their best interests. Patients can, however, be mistaken about their own best interests, namely by asserting their actual interests when those conflict with "professional judgment." Patient autonomy is denied, here, by a stipulation of fact, not merely overridden as a matter of policy. It thus doesn’t matter whether any competing claims or interests are convincing or not, because the patient’s own desires carry no weight; a patient’s preference can be overridden by an authoritative assertion of fact, avoiding any necessity of offering ethical arguments open to challenge.

Example: John Thorpe, et al, address the question of patient information in decision-making in their paper, "Integrity, abortion, and the pro-life perinatologist: Comment on J. Blustein and A.R. Fleischman." They are supportive of the idea that perinatologists should not coerce their patients into a decision that the physician happens to prefer, and they note that physicians who are not supportive of abortion rights will feel conflicted working in this field. However, they also conclude that:

"[e]xcluding pro-life physicians from perinatal medicine would silence their dissenting voices… [which] ultimately limits patient autonomy… If a physician cannot… present both [pro-life and pro-choice] viewpoints, then it would be better for all concerned if he or she entered another field."

This is quite startling from the established perspective of non-directive pre-natal counseling, where scrupulously neutral, supportive education is a watchword; the currently-accepted practice standard is an absence of partisan exhortation, not a balanced excess of it. But the position becomes bizarre when viewed through the lens of autonomy: patients cannot make autonomous decisions unless they are explicitly worked upon by interested third parties with private agendas. The plan hardly seems likely to contribute to careful, confident decision-making by patients, but it does hold one prospect: if adopted, it would ensconce overt anti-choice exhortation as a necessary component of "autonomous" decisionmaking by pregnant women. Autonomy, amazingly, consists in submitting to the unwelcome encouragement not to act on one’s values.

Example: In some cases, the lengths to which authors will go, to find justification for overriding autonomous choices, are revealing. In his paper, "Reclaiming the Medical Profession: The Military Profession as a Model," Jeffrey Whitman argues that patient autonomy poses a threat to physician autonomy, and that the medical profession should seek to regain its lost moral authority by "[d]rawing on the US military’s experience and success in reestablishing an ethical climate …and regaining a measure of professional autonomy" in the post-Vietnam years. Here, patient autonomy is countered not by an overriding moral consideration, but by straightforward competition with the incompatible prerogatives of others. Though imposing the moral climate of the post-Vietnam military on the medical profession is a provocative suggestion, what is not surprising is the familiar conclusion—the denial of patient autonomy.

By themselves, the few examples above mean little. And it is difficult to quantify something as nebulous as a trend in modes of ethical argument. But even this small sample is enough to illustrate the general theme of this paper. The debate over autonomy has become an overt backlash in certain quarters, and the backlash has attracted some to the easy solution of command rather than the gradual one of consensus. There has always been controversy over patient autonomy, and as Veatch notes the ongoing debate over the importance of autonomy, and its relation to community-centered values or to traditional professional authority, has reached a heated pitch. But from within this larger debate a sub-theme has quietly emerged. Historically, debates over autonomy sought to examine the theoretical underpinnings of competing principles, and to explore their application in clinical cases. Partisans of one or another principle, or of principlism as against some other theoretical perspective, hammered at each other’s facts, assumptions, and reasons; dire predictions were made of the results of adopting one or another proposed solution, and counter-proposals were offered and tested. Now, a small number of workers, some of them scholars, some of them acting in the practical realms of medicine, law, and the churches, have seemingly grown weary of debate and are advocating preemptive action against the exercise of autonomy in one area after another.

Respected scholars now claim that autonomy should be overridden, leaving the search for reasons to come after, or that the very assertion of autonomy is the reason that it should be overridden. Scholarly disagreements over autonomy have given way to an open call for evidence to strengthen only one position, and to weaken only the other. Church leaders weigh in on the propriety of an "objective medical best interests" standard of the good; conveniently, it is one which is likely to prohibit acts they also think are objectionable on religious grounds (conveniently also, the "objective medical standard" applies to all patients, whether or not they happen to be adherents of that religion). High officers of the state argue to the Supreme Court that their citizens must be confirmed in the mandatory liberty of not exercising their autonomy. From one direction and another, new reasons to ignore patients’ decisions are forwarded: professional integrity, pro-life beliefs, physician autonomy. It is hard not to suspect that some of the arguments offered are disingenuous—that their conclusions are not merely too easy and too convenient, but knowingly so. There seems to be a calculated intention behind some recent literature—an intention not to persuade, but to put the downgrading of autonomy beyond debate, either by creating a fait accompli (Washington’s prohibition on assisted suicide, anti-choice physicians in reproductive medicine) or by putting in place a handy reference library of convenient justifications (professional integrity, the objective interests standard). This literature provides those who are suspicious of autonomy with both the encouragement and the rationalization to rough-ride over patients asserting it.

Through traditional debate, certain practices were adopted when consensus was reached, often by argumentation, litigation, and legislation in an uneasy cooperative process. Consensus standards arose on such issues as the refusal of life-saving treatment for minors on religious grounds (not allowed), and the withdrawal of feeding and hydration for unresponsive patients (allowed). But the consensus process is slow, and, in the US, it inherently incorporates the country’s traditional social and legal emphasis on individual autonomy. For those disposed to deprecate autonomy, this process may offer few enticements. Unilateral practical solutions are more appealing; hence the "new tone" in discussions of autonomy. Many voices call for autonomy to be toppled from its primacy, but a few quiet workers are privately sawing away down below.

Conclusion

It is possible to be pessimistic about the future both of autonomy and of reasoned debate over ethics even among scholarly professionals. At a time when every issue is defined in absolutes, when some ethical controversies are settled by assassination, when compromise is seen as a non-diplomatic solution to problems, the emergence of a trend toward sophistic rationalizations in a field that has historically prided itself on heartfelt searching is not encouraging. An impatience with the maddening viscosity of ethical argumentation seems now, in some degree at least, to threaten bioethical discourse as a practice. The issue of abortion has been relegated to a wasteland of vicious posturing; other social issues seem to have met the same fate. New issues in bioethics—disability rights, assisted suicide, sexual identity, others—are becoming more heated as attention is paid to them and interested parties refuse to go gentle into the good night of endless journal articles. If these debates degenerate into ragged scuffles for position and the rationalized right to impose one’s view on others, especially supplicant, disempowered others, those small victories will come at a cost.

From another perspective, autonomy advocates may find something encouraging, in a backhand way, about these developments. When autonomy’s opponents, seemingly desperate, abandon their own best arguments in favor of a main-chance stab at imposing a solution before it is too late, autonomy’s defenders may find in that a certain implicit cause for rejoicing.

Which perspective is correct is hard to say. As the temptation to settle ethical issues by preemptive legislation seems to grow, the place of scholarly ethical reasoning seems to diminish. The rise of corporate medicine has also not helped ethics maintain its principled detachment. Bioethicists, seeking whatever influence they can garner, may find the cut-and-thrust of lawsuits, legislation, and propaganda the only use of their talents likely to produce a result. Or, possibly, the temptations of this moment—easy solutions too easily rationalized—will be resisted.

Notes

1. cf. Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 4th Ed., Oxford University Press, Oxford and New York, 1994; pp. 121-142 passim

2. Robert M. Veatch, "Which Grounds For Overriding Autonomy Are Legitimate?," in Daniel Callahan, "Can the Moral Commons Survive Autonomy?," The Hastings Center Report, Nov - Dec 1996, v26 n6, p. 4 [includes commentary by Robert M. Veatch, Willard Gaylin, and Bonnie Steinbock]

3. Daniel Callahan, "Can the Moral Commons Survive Autonomy?," The Hastings Center Report, Nov - Dec 1996, v26 n6, p. 4 [includes commentary by Robert M. Veatch, Willard Gaylin, and Bonnie Steinbock]

4. ibid.

5. ibid.

6. ibid.

7. ibid.

8. "Supreme Court Report: Excerpts from the Supreme Court Oral Argument on Physician-Assisted Suicide," Washington Post, January 9, 1997, p. A16

9. ibid.

10. Human Dignity, Autonomy And Mentally Incapacitated Persons: A Response To Who Decides? Submitted To The Lord Chancellor’s Department By The Linacre Centre For Health Care Ethics At The Request Of The Roman Catholic Bishops Of England & Wales, Of Scotland, And of Ireland, accessed on the World Wide Web 27 July, 2000, at: http://www.linacre.org/whodec.html

11. John M. Thorp, Jr., Steven R. Wells, Watson A. Bowes, Jr., "Integrity, abortion, and the pro-life perinatologist: Comment on J. Blustein and A.R. Fleischman," The Hastings Center Report, v25, Jan/Feb 1995, pp. 27-8