Discussion Questions

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2 questions, 500 words all together

1. From 
Chapter 1: Moral Norms (Beauchamp & Childress): Under the “Moral Dilemmas” section on pages 10-11, Beauchamp and Childress offer a short overview of the 
Tarasoff v. Regents of the University of California case (see also endnote 20 on page 28). For this discussion question, you should: (a) highlight which 
prima facie norms were in conflict in this case; and (b) explain whether and why you think that the majority opinion in this case satisfactorily met Beauchamp and Childress’ six conditions that must be met in order to justify infringing one 
prima facie norm in order to adhere to another (see pages 22-23 for those six conditions). For more on the 
Tarasoff v. Regents case, see the following:

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2. From 
Chapter 1: The Way of Medicine (Curlin & Tollefsen): In this chapter, Curlin and Tollefsen argue that “medicine is for 
health” (pg. 20) and that, “[a]ccording to the Way of Medicine, health is the end or purpose of medicine, the principal goal that medicine seeks, the principal good that is realized internal to medicine’s practice.” (pp. 30-31) For this discussion question, please briefly overview the multifaceted nature of “health” as defended by the authors in the “What Is Health?” section (see pages 24-31).

The Way of Medicine

NOTRE DAME STUDIES IN MEDICAL ETHICS AND BIOETHICS

O. Carter Snead, series editor

The purpose of the Notre Dame Studies in Medical Ethics and Bioethics
series, sponsored by the de Nicola Center for Ethics and Culture, is to
publish works that explore the ethical, cultural, and public questions arising
from advances in biomedical technology, the practice of medicine, and the
biosciences.

The Way of Medicine

Ethics and the Healing Profession

FARR CURLIN

and

CHRISTOPHER TOLLEFSEN

University of Notre Dame Press

Notre Dame, Indiana

Copyright © 2021 by the University of Notre Dame

Notre Dame, Indiana 46556

undpress.nd.edu

All Rights Reserved

Published in the United States of America

Library of Congress Control Number: 2021942665

ISBN: 978-0-268-20085-5 (Hardback)

ISBN: 978-0-268-20086-2 (Paperback)

ISBN: 978-0-268-20084-8 (WebPDF)

ISBN: 978-0-268-20087-9 (Epub)

This e-Book was converted from the original source file by a third-party
vendor. Readers who notice any formatting, textual, or readability issues are

encouraged to contact the publisher at [email protected]

To our spouses, Kimberly Curlin and Laurie Tollefsen,

who merit more thanks and praise

than we can possibly give here

CONTENTS

Preface: A Perplexed Physician
Acknowledgments

Introduction: A Profession in Crisis

ONE The Way of Medicine

TWO The Requirements of Practical Reason

THREE The Doctor-Patient Relationship

FOUR Autonomy and Authority

FIVE The Rule of Double Effect

SIX Sexuality and Reproduction

SEVEN Abortion and Unborn Human Life

EIGHT Medicine at the End of Life

NINE Last-Resort Options

TEN Conscientious Medicine

Notes
Index

PREFACE

A Perplexed Physician

I sensed early in my medical training that something had gone wrong at the
heart of our profession. I came to medical training confident that caring for
those who are sick would readily fit into my vocation as a Christian, not
because Christians have a lock on healing—by no means. Rather, because
everyone—whether Jew, Christian, Muslim, atheist, or other—knows that
healing is good work, even “God’s work.” I knew that modern physicians
had gotten involved in a few practices—elective abortion and assisted
suicide in particular—opposed both by traditional Christianity and by
traditional medical ethics. But these practices were on the margins, I
thought, exceptions to medicine’s otherwise consistent orientation toward
healing. It did not take long for me to realize that I was mistaken—that
these overtly controversial practices expressed deeper changes at the heart
of the medical profession. Having come over the second half of the
twentieth century to “provide” all kinds of interventions that were not so
obviously a part of healing those who are sick, physicians could no longer
say what it meant to heal. In seven years of medical school and residency
training, I do not recall a medical educator ever encouraging me or my
fellow trainees to consider what medicine is for.

How could we clinicians-in-training find our way if our teachers could not
tell us where that way leads? We learned to take our bearings by setting
aside the question of what medicine is for and instead focusing on getting
where we were asked to go as efficiently and effectively as possible. Those
were the heady days of evidence-based medicine. Medical educators
advocated “the conscientious, explicit, and judicious use of current best
evidence in making decisions about the care of individual patients.”¹
Unfortunately, our teachers had much less to say about what norms we

should conscientiously uphold and by what standards we should evaluate
whether our use of evidence had been judicious. The resulting vacuum was
filled with the default norm of contemporary medicine: support the
autonomous choices of patients as long as doing so is not illegal, infeasible,
or unequivocally harmful.

Indeed, the language of conscience and judgment proved to be the residue
of a tradition of practice that the profession of medicine seemed determined
to leave behind—a tradition associated with paternalism, patriarchy, and
other specters of a repressive past. To avoid recapitulating the injustices of
that past, we learned to ask not what ought to be done but who decides what
ought to be done. After all, what would give a physician the authority to
judge what is good for someone else? Shouldn’t patients decide what
happens to their bodies? We were taught various ethical principles we might
invoke to describe a clinical decision, but we also learned that in the end
only the patient could decide which of these principles should govern in
their particular case. Being “patient-centered,” we discovered, meant
respecting patients’ right to judge what is good for them. So we made
patient preferences our guide, and we resisted the temptation to impose our
own values under the pretense of conscience and clinical judgment. The
safest route was to separate the personal from the professional, keeping the
former from intruding on the latter.

I have never made peace with this notion of separating the personal from
the professional. I had set out to practice medicine because caring for the
sick seemed to fit into the Christian vocation to love God and one’s
neighbor. In training, however, Christian commitments largely were
construed as “personal values” that must be kept from interfering with my
professional obligations. While I puzzled over how that could be so, I
observed that separating the personal from the professional reified the
sterility and detachment of clinical encounters that left patients dissatisfied
and physicians dispirited.

How did we end up with this idea that medicine requires
compartmentalizing the personal away from the professional? How did
medical educators end up teaching that good physicians must be willing to
be bad Christians, Jews, or Muslims?

I did not find satisfying answers to these questions, but who was I to
challenge the status quo? This ancient profession went on before me and
will go on after me, whether I like it or not. Perhaps in time I would see that
by keeping my personal and professional lives separate, focusing on
scientific data, and deferring to others to tell me what to pursue, I would
become a better physician than I had imagined. I would find that to love my
neighbors means to do what they ask me to do even when that goes against
my better judgment. And if I could not reconcile my personal moral
sensibilities with the standards of the profession, I could find a different line
of work. I had not been conscripted, after all.

But further experience only confirmed my misgivings that the medical
profession had lost its way. Indeed, in the name of respect for patient
autonomy, the profession seemed to have given up any claim to know
where that way should lead. The medical profession trains its members to
defer to patients regarding what goals physicians are to pursue, reserving to
the clinician the authority only to insist that those ends be pursued in a
scientifically informed and effective manner. So, for example, a physician
cannot know whether he should sterilize a patient or offer her assisted
reproductive technologies until and unless the patient tells him what she
wants. The physician can decide, however, which surgical technique is most
effective for sterilization and which exogenous hormones will effectively
hyperstimulate the ovaries. Many medical ethicists likewise have
abandoned any claim to know what medicine is for. As a member of the
clinical ethics faculty at a premier academic medical center, I joined
colleagues in spirited debates about who was authorized to make a
particular clinical decision, but we almost never discussed what that person
should decide, or why. We had learned to police ourselves to avoid the
presumption of claiming to know what good medicine required for this or
that patient.

Meanwhile, in the hospital I watched countless physicians bend over
backward to give patients and their family members all the options for their
cases and to avoid “imposing” any judgment regarding what was best for
the patients. Physicians routinely would tell family members of critically ill
patients that the decision to continue or discontinue life-sustaining
technology was not the physicians’ to make, or even the family’s to make.

Rather, all were obligated to set aside their judgment about what would be
good for the patient and instead choose what the patient would choose if the
patient could choose for himself. When families did not choose as the
physicians hoped they would, the physicians would retreat to their
workrooms to grumble about unrealistic family members who were in
denial. Doctors resent continuing unreasonable efforts to keep patients
alive, but they do not see any other option. They have internalized the
axiom that only patients, or their surrogates, can say what is good for them.

The same demoralized ethos carried over into the outpatient setting, where,
for example, physicians were long taught that the patient’s pain was what
the patient said it was, and the physician was obligated to treat that pain
until the patient said it was relieved. Those of us who practice hospice and
palliative medicine have been taught that relieving pain and other
symptoms is not enough; we are also to maximize quality of life and to
minimize suffering. No one but the patient can say whether we have
achieved that goal, so we must follow patients’ preferences closely,
including their preferences regarding how and when to die.

Physicians have become particularly reticent to say what medicine is for in
the domain of sexuality and reproduction. A patient once asked me to
prescribe Viagra because he was having difficulty sustaining an erection
when having sex with his wife, though he had no such problems when with
his mistress. My colleagues were ambivalent as to how I should respond.
On one hand, it seemed strange to facilitate this man’s infidelity to his wife.
On the other, the drug was safe, legal, and permitted by the profession; who
was I to judge? A homosexual man whom I had treated for high blood
pressure asked me to help him and his partner figure out how to get a baby
through in vitro fertilization (IVF) using an anonymous egg donor and a
gestational surrogate. My colleagues were agreed that I should
accommodate his request, at least by referring the patient to the assisted
reproductive technology clinic. For a few years, I took night calls for my
university’s student health service, and some nights more students called to
ask for prescriptions for “emergency contraceptives” than called because
they were sick. I found myself asking, “What does giving people all of
these things they want have to do with practicing medicine?”

One might think that deferring to patients about the goals of medicine
would lead to greater patient satisfaction, but that is not what I have
observed. Instead, by relinquishing their professional authority, physicians
seem to have given third parties a free hand to intrude on and govern the
physicians’ experiences and their patients’, to the chagrin of both. Today,
patients and clinicians alike are harried by impersonal forces along paths
they hardly understand. Patients ask for whatever the latest pharmaceutical
commercial, or the latest social fashion or anxiety, recommends.
Meanwhile, doctors submit to the demands of Medicare and other insurers,
bean counters tracking relative value units (RVUs), and, most of all, the
electronic medical record. Practitioners may start by asking a patient, “How
can I help you today?,” but they soon turn their attention to the invisible
social engineer standing in the corner of every exam room, armed with a
checklist the doctor must follow in order to ensure that she provides quality
care that is safe and “value-based.” Neither patients nor physicians call the
shots, and both feel helpless to change the system.

Helplessness leads both to demoralization and to detachment. Why would
anyone want to practice medicine if doing so meant setting aside their
religious aspirations, their ethical judgment, and their longing to connect
with patients on a human level? Why would anyone aspire to serve as an
efficient cog in a vast, bureaucratically structured healthcare industry? In
this situation, physicians and other healthcare practitioners give up the quest
to find—much less pursue—what medicine is for. The work to which
medical practitioners thought they were called becomes a job to tolerate.
Their patients present them not with the privilege of cooperating in pursuit
of healing but with the burden of satisfying demands that clinicians
frequently resent. Medical practitioners, then, need self-care and work-life
balance to mitigate the threat of medicine to their integrity and their
flourishing and to keep them from walking away from the practice of
medicine altogether. That, at least, is how it has seemed to me.

If you are a physician and this account resonates at all with your own
experience, this book is for you. Moreover, if you long to recover a way of
practicing medicine that can truly be seen as a “calling,” intrinsically
rewarding work to which you can happily commit the best of your time,
attention, and energy, then read on. We hope you will learn to better see and

to say what you know, and so be equipped to continue the worthy adventure
of practicing medicine.

THIS BOOK HAS been written by a practicing physician, Farr Curlin, and
a philosophy professor, Christopher Tollefsen. It grew out of a seminar we
have taught together for almost ten years, but it is inspired by what I have
experienced and observed in my training and practice as a clinician and
medical ethicist. Some readers may recognize in my account their own
unease and uncertainty about what medicine has become.

Farr Curlin, MD

ACKNOWLEDGMENTS

This book originated in an annual week-long seminar in medical ethics that
we have taught since 2011, initially sponsored by the Witherspoon Institute
in Princeton, New Jersey, and now by the Arete Initiative at Duke
University. We are indebted to those whose vision and leadership have
made the seminar possible, especially Robby George and Luis Tellez, as
well as those who have given hospitality to the scores of clinician trainees
who have joined us over the years, including Patrick Hough, Felix Miller,
Phil Braun, and John Rose. And we are indebted to our students in those
seminars, who have committed their lives to the practice of medicine and
whose sincere questions, contentions, and arguments made invaluable
contributions to this book.

Medicine, as we argue here, is a practice, as is the doing and teaching of
philosophy. We could never have gotten started in understanding either
practice without the help of our teachers, among whom Farr notes
particularly Drs. Carl Kraus, Mark Siegler, Daniel Sulmasy, and Leon Kass;
Chris acknowledges with gratitude three philosophers who have died since
our work on this book began: Joseph Boyle, Germain Grisez, and H.
Tristram Engelhardt.

As this book has taken shape over the past several years, a number of
colleagues have gifted us with their critiques of our arguments. We thank
Jason Amaral, Ryan Anderson, Jeff Baker, Jeffrey Bishop, Chip Denton,
Lydia Dugdale, H. Tristram Engelhardt, Nick Epley, Margaret Houck, Ana
Iltis, Lauris Kaldjian, Daniel Kim, Scott Kim, Warren Kinghorn, Brett
McCarty, Abraham Nussbaum, Brian Quaranta, Jon Tilburt, John Yoon, and
anonymous reviewers of the University of Notre Dame Press. None of these
agree with us on every point, and some disagree with us on major points.
The deficiencies of the book are our own, but these share credit for any of
the book’s merits, as do those who have helped us in the editing process,
including Judith Heyhoe, Luke Olsen, and Bob Land.

Farr is particularly grateful to colleagues at the Trent Center for Bioethics,
Humanities, and History of Medicine at Duke University and those in Duke
Divinity School’s Initiative on Theology, Medicine, and Culture (TMC).
Both of these institutional spaces foster unusually fertile environments for
inquiring about the moral and theological dimensions of the practice of
medicine. Chris thanks the James Madison Program at Princeton University,
the Eudaimonia Institute at Wake Forest University, and his own University
of South Carolina. Each has been home to some of the drafting of this book,
and colleagues and friends at each deserve much thanks.

We have written about many of the ideas in this book in other places. A
number of the arguments and examples appear elsewhere, in particular the
following, which are listed in the order in which they were published:

Farr Curlin, “Hospice and Palliative Medicine’s Attempt at an Art of
Dying,” in Lydia S. Dudgale, ed., Dying in the Twenty-First Century:
Toward a New Ethical Framework for the Art of Dying Well (Cambridge,
MA: MIT Press, 2015), 47–66.

Y. Tony Yang and Farr A. Curlin, “Why Physicians Should Oppose Assisted
Suicide,” Journal of the American Medical Association 315, no. 3 (2016):
247–248.

Christopher Tollefsen, “Abortion,” in Bob Fisher, Ethics, Left and Right:
The Moral Issues that Divide Us (New York: Oxford University Press,
2020), 340–48.

Farr A. Curlin and Christopher O. Tollefsen, “Medicine against Suicide:
Sustaining Solidarity with those Diminished by Illness and Debility,” in
Christian Bioethics, forthcoming.

Christopher Tollefsen and Farr Curlin, “Solidarity, Trust, and Christian
Faith in the Doctor-Patient Relationship,” Christian Bioethics, forthcoming.

In addition, an earlier version of chapter 10 was published as

Farr A. Curlin and Christopher O. Tollefsen, “Conscience and the Way of
Medicine,” Perspectives in Biology and Medicine 62, no. 3 (2019): 560–75,
reprinted with permission.

Introduction

A Profession in Crisis

Medical practitioners and those who want to become such practitioners face
basic questions: What is medicine? What is medicine for? What does it
mean to be a good doctor? Their answers seem essential to the practice of
medicine and to understanding its moral norms. The absence of answers to
these questions—or incoherent or incorrect answers—would seem to
prefigure a crisis for both medicine and medical ethics. For without correct
and coherent answers, practitioners of medicine cannot properly orient
themselves within their profession, nor even think of their practice as a
profession at all. And without some account of what the medical profession
professes—without an account of medicine’s purpose or end—ethicists rely
on norms that bear only contingent relationships to the activities of medical
professionals. Ethicists fail, in other words, to articulate an ethics of
medicine in the proper sense.

We believe that medicine, and hence medical ethics, is in precisely this sort
of crisis. Medicine has lost its way because it lacks clarity about where the
way should lead. We no longer have a shared public understanding of what
medicine is for, of what the end of medicine is or should be. Rather,
medicine has substituted for its once clearly recognized purpose something
amorphous, subjective, and shadowy. As a consequence, the norms that
medical professionals and professional ethicists bring to medical practice
are devoid of objective content and radically deficient for guiding doctors
and protecting patients.

THE PROVIDER OF SERVICES MODEL FOR MEDICINE

In answer to the question “What is medicine?,” according to the provider of
services model, medicine comprises a set of technical skills that are to be
put to work to satisfy patient-client preferences. Healthcare workers are
providers of services, and these services are undertaken for the sake of
patient well-being, understood principally in terms of satisfying the
patient’s wishes.¹

Every culture gets the medical practice it deserves, and in our culture
medical practice is dominated by a consumerist understanding, where well-
being is understood in terms of the patient’s desires being satisfied. Efforts
to identify an ethical framework capable of guiding practitioners and
patients in our time have resulted in consequentialism, contractarianism,
and, most prominently, principlism—the framework that gives us the
familiar “four principles” of medical ethics.² In the context of an
individualist and consumerist environment, however, these efforts all tend
to default to three norms: what the law permits, what is technologically
possible, and what the patient wants.

Thus, according to the provider of services model, if an intervention is
permitted by law, is technologically possible, and is autonomously desired
by the patient, medical practitioners should provide the intervention.
Indeed, they may be professionally obligated to do so.³ After all, these
norms fit our expectations of other providers of services. The good folks
who provide us with Wi-Fi or who make our double soy lattes do not bring
further considerations to bear on whether to give us what we want. They do
not consider the appropriateness of our desire for a double soy latte; they do
not ask what websites we’ll be visiting. We expect them to obey ordinary
norms of law and not defraud or deceive, but beyond that we expect them to
do as we wish (provided that they can perform the service, and we can pay).
There is no distinctive professional ethic for these practices because there is
no profession, no deep orientation to a good or set of goods, that gives
meaning and purpose to what they do.

Thus, in the provider of services model, the work of physicians becomes
demoralized, and its ethic becomes what the philosopher H. Tristram

Engelhardt has identified as a “morality of strangers.”⁴ One does not
knowingly do violence to the unconsenting innocent, to be sure. But within
the boundaries of law and consent, what is technically possible is ethically
permissible. That which is permissible and also desired may even be
ethically obligatory. Medical ethics reduces to a set of procedures for
negotiating noninterference with patients’ wishes to the greatest possible
extent. Medicine itself devolves into a powerful set of means to be used to
satisfy the preferences and desires of those who are authorized, legally and
procedurally, to choose.

Among the many consequences of the provider of services model, the
following three loom. First, professional authority has steadily eroded. If
there is no objective standard or end for medicine, physician expertise is
merely technical. Thus, instead of exercising the authority of expertise
within a sphere constituted by their professional commitments, physicians
become increasingly subject to the exercise of power by lobbyists and
political advocacy groups. Medical professionals come to work in a highly
regulated domain in which the exercise of clinical judgment and prudence is
neither possible nor desirable.

It’s no surprise, then, that declining professional authority is followed by a
second consequence: a crisis of medical morale. Insofar as medicine merely
provides desired services, its pretense of moral seriousness is a charade, and
its attempts at professionalism are a façade. The practice of medicine is
characteristically grueling, with long hours spent under taxing
circumstances. Is it surprising that physicians who experience themselves
largely as mere functionaries—asked to set aside traditional medical norms,
religious convictions, and their best judgment—suffer high rates of
burnout?⁵

Finally, when medicine is understood as the provision of healthcare
services, the physician’s judgment—and particularly the physician’s claims
of conscience—come to be seen in competition with the fundamental, but
minimal, norms of the profession. The exercise of physician conscience is
treated as the intrusion of “private” or “personal” concerns into transactions
that should be governed by physicians’ professional commitment to provide
legally permitted services to patients who request those services. Michael

and Tracy Balboni note that this artificial separation of the personal and
professional leads patients and clinicians to suppress and ignore their moral
and spiritual concerns, to the detriments of both.⁶ As a result, the medical
profession and society at large appear increasingly ready to abandon the
idea of the conscientious physician and to use the coercive powers of the
profession and the state to compel physicians to participate in practices that
violate norms that have guided medical practitioners for millennia.

THE WAY OF MEDICINE

What is our alternative vision for medicine? We call it the Way of
Medicine. The Way of Medicine offers physicians both a path out of the
provider of services model (PSM) and the resources necessary to resist the
various political, institutional, and cultural forces that constantly push
practitioners and patients to think of their relationship in terms of an
economic exchange. We attempt in this book to articulate and defend this
Way of Medicine.

Medicine as a Practice

We begin by arguing that medicine is a paradigmatic practice, elevated to a
profession because of its social importance, that aims at human health.
Health is an objective natural norm for any organism: the well-functioning
of that organism as a whole. Human health is also an objective human good:
our organic well-functioning is an aspect of our human flourishing.
Understood in this twofold way, health gives singular purpose to the
practice of medicine.

The PSM also concerns itself with health; no one, to our knowledge, denies
the importance of health to the practice of medicine. But under the PSM,

health is only a subjective and socially constructed concept. Therefore, the
norm of “health” is sufficiently malleable to justify pursuing almost any
desired bodily condition. In addition, many see health, however defined, as
only one among a number of goals toward which medicine might
reasonably be aimed. For the PSM, pursuing health is optional.⁷

In contrast, in the Way of Medicine, the good physician orients her practice
centrally around the good of health. Physicians need only pursue those aims
related to health, and the profession as a whole should, to the extent
possible, avoid entanglement with goods other than health—except when
necessary to understand and address patients’ health-related needs. In
detaching from the objective demands of health in favor of a broader and
more subjective mandate, the medical profession makes a grave mistake of
prudence. Such detachment erodes the grounds for treating medicine as a
profession rather than as a technical trade; the professional commitments of
medicine are watered down, and physicians find themselves lacking the
excellence that is made possible by sustained focus on a single good.

Physicians and other members of the medical profession must also,
according to the practice of medicine, resist inducements to act in ways that
contradict the good of health. This commitment dates back to Hippocrates
and the promise the physician makes in the Hippocratic Oath to “give no
deadly potion” nor “cause an abortion” no matter how much the physician
is implored to do so.⁸ In the Way of Medicine, physicians are always
justified in refusing to intentionally damage or destroy the good of health.
But this is very different from saying that physicians should avoid any
action that even indirectly injures health; the rule of double effect has for
centuries helped clinicians practicing the Way of Medicine to discern when
they can accept as side effects of health-oriented interventions harms that
they should never intend.⁹

The Way of Medicine obviously requires that physicians do more than
refuse to damage the good of health. Physicians must devote themselves to
that good, not in the abstract but as it bears on their patients’ concrete
needs. Medical practice is neither a pastime nor merely a career; it is a
profession, whose members make life-shaping commitments to care for

particular vulnerable persons. The patient necessarily occupies a privileged
position in the physician’s life, as a focal point of his concern and care. At
the same time, the physician who practices the Way of Medicine pursues
the health of his particular patients while mindful that health is not the only
good, nor are his patients the only ones in need.

The Requirements of Practical Reason

The Way of Medicine starts with attention to the kind of practice medicine
is and the good toward which medicine aims, but it does not stop there.
People who pursue the health of patients must do so in ways that respect the
broader demands of ethics. (We use the terms “ethics,” “morality,” and
“practical reason” interchangeably.) Put differently, the practice of medicine
has its own integrity, but that integrity depends on and is accountable to the
requirements of practical reason.

The requirements of practical reason have been known under a number of
names. One is natural law. Natural law is not law inscribed in the heavens
but rather the practical reason that directs persons to act. C. S. Lewis
identified another name, the Tao, as a synonym for practical reason and
natural law, which he describes as the “source of all value judgments.”¹⁰
These various names point to the same reality: practical reason’s
identification of that which is genuinely good for human beings—that is,
conducive to human flourishing—and the corollary implications as to what
we should do and how we should live.

What goods contribute to human flourishing? Practical reason identifies
several goods as giving human persons fundamental and basic reasons for
action: friendship, knowledge, and play are three examples. Human life and
health constitute another such good: we are better off, as individuals and in
community, if we are alive and healthy. Health is not good only in order to
achieve some other purpose; its goodness is what philosophers call basic.
We can reasonably preserve a life for its own sake; we can reasonably
pursue health simply in order to be healthy.

So practical reason gives us the principle that health should be valued and
pursued. What are the implications of that principle for the Way of
Medicine? Here we find that the internal norms of the practice of medicine
are strongly confirmed by what practical reason requires, unlike, say, the
internal norms of the practice of torture. Practical reason forbids us to
intentionally damage or destroy any basic human goods, including the good
of health. Practical reason thus adds to and deepens the norms internal to
medical practice, but it does not contradict those norms. In the Way of
Medicine, a practitioner focuses on the patient’s health but does so while
respecting and being guided by the fuller requirements of practical reason.

AN OPEN INVITATION

In this book we invite the reader to join us on a quest to investigate the Way
of Medicine. While we write primarily for those who are dissatisfied with
the PSM, we welcome any readers with an interest in contemporary
healthcare.

We do not intend to divide the medical profession into two starkly distinct
camps. We recognize that our description of the PSM may seem like a
caricature to some practitioners, who find themselves agreeing fully neither
with the PSM nor with our account of the Way of Medicine. These readers
may call themselves “providers,” but they are devoted to providing quality
healthcare and they take seriously the duty to do no harm to their patients’
health. Yet they also see much value in respecting patients’ choices and
providing healthcare services that align with what the patient believes is
good for him or her.

In fact, the PSM and the Way of Medicine both operate in the practices of
most clinicians—to different extents in different contexts. Few physicians
practice consistently within only one or the other, and the two accounts
coexist amicably so long as what patients want is for their practitioners to
use their best judgment to pursue the patients’ health. Most patients do want
just that most of the time. But ultimately, as we will show, the two accounts

are irreconcilable and the future of medicine will be determined by which
one governs the profession.

What might readers who deeply value what the PSM offers gain from
learning about the Way of Medicine? At a minimum, they will come to
understand what still attracts some of their colleagues to this once regnant,
but now contested, vision of medicine as an honorable profession. Even if
we fail to win over such readers, we can at least contribute to the promotion
of civility and mutual respect among those who disagree.

Still, in this book we speak primarily to those who are disposed to
recognize and affirm that human health is a good that medical practitioners
can know objectively and pursue conscientiously. The book is primarily for
people convinced that some real moral boundaries should never be
traversed—for example, physicians should never kill or deliberately harm
their patients, even when patients request it. These convictions still run deep
in the medical community, but those so convinced inhabit a culture and a
profession that have lost the language (and the arguments) to make sense of
these eminently reasonable propositions. Without such language, it can be
hard for physicians, ethicists, and even patients to find their way. In this
state of affairs, for example, we observe physicians who know that they
should never kill their patients and are deeply unsettled by medical and
societal pressures to the contrary but who have lost the language to talk
about how that commitment to life and health is integral to medicine. With
respect to such physicians and others, our task is to reintroduce a more
fitting vocabulary to make sense of what they already know.

If we succeed, our physician readers will leave this book with tools,
concepts, and arguments that help them practice medicine well while
enabling them to account for what they are up to as physicians. If our
argument is sound, such readers’ practice of medicine will have a coherence
and goodness that others will both admire and want to emulate. Professional
bioethicists and healthcare policymakers will also find resources to address
some of the most contested ethical issues of our day. Finally, those whom
the profession of medicine serves have something to gain, for our book
helps identify what patients can reasonably expect of medicine.

THE PROVIDER OF SERVICES MODEL IN HISTORICAL CONTEXT

A full history of what we call the provider of services model goes beyond
the scope of this book, but Gerald McKenney, in his book To Relieve the
Human Condition, traces the PSM’s roots to the writings of René Descartes
and Francis Bacon. Bacon saw in modern science the means to “relieve and
benefit the condition of man” by reducing suffering and expanding the
realm of human choice, ostensibly noble goals.¹¹ Unfortunately, as
McKenney observes, this imperative to relieve suffering and expand choice
finds in contemporary culture no larger framework of meaning in which to
discern which suffering should be relieved and which choices should be
accommodated. In the resulting moral vacuum, medicine comes to relieve
any condition that an individual experiences as a burden; maximizing
choice becomes the default.

What McKenney calls “the Baconian project” takes the human body to be
without any given purpose or end (telos)—without what Aristotle called a
final cause. Jeffrey Bishop, in The Anticipatory Corpse, traces out how
modern medicine was birthed historically and argues that the loss of a
teleological understanding of the body produced a medicine that treats the
body as so much matter in motion and death as simply the terminus of that
motion.¹² In Bishop’s account, contemporary medicine has come to have no
purpose except that which is given to it, post hoc, through the choices of
those socially empowered to do so—in our era, autonomous individuals. If
an individual chooses to use medicine in a certain way—to manipulate their
body in some way or even to cause their own death—the choosing itself is
taken to make that use of medical technology ethical.

Although McKenney, Bishop, and other critics of contemporary medicine
such as H. T. Englehardt and Stanley Hauerwas all have different points of
emphasis, each finds this turn toward maximizing choice and minimizing
suffering according to the wishes of the patient to impoverish medicine. All
urge, in different ways, the restoration of final causality (purpose) to our
understanding of life, death, and medical practice. All call for medicine to
be situated within an ethical framework in which illness and suffering, and
the practices of medicine, are understood against a vision of humans

flourishing as the mortal, rational animals that they are. The arguments we
make in this book intersect with, diverge from, and are indebted to the work
of these and other critics of contemporary medicine. However, our primary
task is to articulate and defend our own account, and so we do not trace
these intersections, divergences, or debts here at any length.

THE WAY OF MEDICINE AS A TRADITION

We have suggested that what we call the “the Way of Medicine” constitutes
the practice of medicine, deepened, corrected, and shaped by the
requirements of practical reason. Some readers may be suspicious of this
language because they doubt the existence of the Way of Medicine. Such
skepticism is likely to be heightened insofar as our account invokes the
Hippocratic “tradition” of medicine. As Bishop puts the point, “It is indeed
odd to think that there has been real continuity between Hippocrates and the
medicine of today.”¹³

The objection can be extended. Has not medicine always—the skeptic
might ask—encompassed arguments, exceptions, contradictions, and
confusions? When, if ever, has medicine been characterized by sufficient
uniformity—“hegemony,” the dubious might say—to justify speaking of the
Way of Medicine? We take this objection seriously, as uniformity rarely
exists with regard to any human activity. Consider a parallel problem with
designating something as “traditional.” Traditional marriage—for example,
a man and woman joined in a permanent and exclusive union—is found at
least as often in the breach as in the observance.

Nevertheless, just as the phrase “traditional marriage” identifies a core set
of beliefs and practices, adopted by many and constituting a “social
imaginary” that could be found deeply embedded within Western culture,¹⁴
so does the “Way of Medicine” designate a core set of beliefs and practices
adopted by many and constituting a social imaginary within which doctors
and patients have understood much of what has been expected of medicine
and its practitioners.

So while the Way of Medicine (like “Hippocratic Medicine”) has a
somewhat idealized quality to it, it identifies a discernible tradition with
characteristic practices along with ideas that make sense of those practices.
More important, this tradition gives rise to what thinkers such as Edmund
Pellegrino have called the “internal morality of medicine,”¹⁵ whereby the
norms that govern physicians as physicians emerge from the particular
needs to which the practice of medicine responds and the goods toward
which the practice aims. The Way of Medicine identifies the “traditional
practice” that, as McKenney writes, emphasized health as a “standard of
bodily excellence.”¹⁶

Moreover, we do not claim that the internal morality of medicine is self-
vindicating. As the example of torture reveals, practices can be
unreasonable in themselves—intrinsically contrary to human good and
human flourishing. Or, as we observe with respect to medicine, an
otherwise reasonable practice can grow corrupt, unreflective, or shallow. So
one must engage in critical reflection to discern whether, to what extent,
and in what dimensions a practice is in fact reasonable. Such reflection,
however, is simply a form of attending to the requirements of practical
reason, the natural law, or the Tao.

This task, albeit difficult, is incumbent on us all. We need not, however,
attempt the task on our own. Just as the practice of medicine has been
deeply shaped by healers such as Hippocrates, Jesus, Maimonides,
Avicenna, Hildegard von Bingen, Galen, Thomas Percival, and Dame
Cicely Saunders, so have a host of philosophers, theologians, legal scholars,
and clinicians given deep consideration to the requirements of practical
reason in the medical context. The list would begin with Plato, Aristotle,
Augustine, Aquinas, and several of the healers mentioned above, but it
would include, and not end with, twentieth-century thinkers such as
Edmund Pellegrino, Leon Kass, Alasdair MacIntyre, and John Finnis.¹⁷

The Way of Medicine does identify a tradition, not understood as an
unbroken continuity between the past and the present, but in the sense
articulated by MacIntyre, as a “historically extended, socially embodied
argument.”¹⁸ To our own development of that argument we now turn.

CHAPTER ONE

The Way of Medicine

To help us investigate the Way of Medicine and to clarify how it differs
from the provider of services model, we now introduce three patients whose
clinical cases we follow throughout the remainder of the book:

Cindy Parker is a twenty-year-old undergraduate student who presents to
the student health clinic.

Abe Anderson is a fifty-year-old carpenter who makes an appointment to
see a local primary care physician.

Nora Garcia is an eighty-year-old widow with multiple chronic diseases
who presents for her quarterly appointment with her geriatrician.

With these patients in mind, we return to our fundamental questions: What
is medicine, and what is it for? What can Cindy Parker, Abe Anderson, and
Nora Garcia reasonably expect of their physicians? What goods or ends
give purpose to the practice of medicine? What does it mean to call
medicine a “profession,” and how should its nature as a profession structure
the life of the one who enters it? Oddly enough, physicians rarely ask
themselves these questions, nor do medical educators ask them of their

students. But the answers to these questions are central to the Way of
Medicine.

By contrast, the provider of services model (PSM) either ignores these
questions or denies that they can be answered. The PSM denies that
medicine has an end or a purpose that can be known. In the absence of a
rational purpose for medicine, the “morality of strangers” stands in:
physicians must at least gain consent before intervening upon the body of
another. But the morality of strangers declines to take up the question that
the Way of Medicine poses as central: what actions are, and what actions
are not, essential to, acceptable for, or incompatible with the fundamental
purposes of medicine and hence with the profession of the physician?

Principlism, the most prominent ethical framework guiding the PSM,
explicitly circumvents the question of what medicine is for. Tom
Beauchamp and James Childress chose four principles—beneficence,
nonmaleficence, justice, and autonomy—that seemed relevant to the kinds
of practices in which medical practitioners typically engage, yet their
framework neither specifies nor depends on an account of what those
practices are supposed to do. Principlism encourages medical practitioners
to apply the principles, and one principle, beneficence, tells practitioners to
do what benefits their patients. But principlism does not specify what, in
fact, benefits patients and so leaves open what benefits medicine should
seek.

The PSM seems to lack something that should be at the root of medical
practice and ethics. We can hardly ask medical practitioners to make an
open-ended commitment to use the powers at their disposal to achieve
whatever their patients want, much less whatever the state or another third
party demands. In so doing we would ask medical practitioners to divest
themselves of their moral agency and responsibility. To practice good
medicine, one must first understand what kind of practice medicine is, what
it is for, and what difference that makes.

MEDICINE IS A PRACTICE

Medicine, we propose, is a practice. A practice, Alasdair MacIntyre writes,
is “any coherent and complex form of socially established cooperative
human activity through which goods internal to that form of activity are
realized in the course of trying to achieve those standards of excellence
which are appropriate to, and partially definitive of, that form of activity,
with the result that human powers to achieve excellence, and human
conceptions of the ends and goods involved, are systematically extended.”¹
A practice is found wherever human persons cooperate in the pursuit of a
good, grow in excellence at that pursuit over time, and extend their shared
wisdom of the good and excellence in pursuing that good across
generations. So described, medicine seems like a paradigmatic practice.

To identify which goods are realized internal to this practice, consider
MacIntyre’s distinction between internal and external goods. MacIntyre
gives the example of a child learning to play chess. He notes that we might
encourage a child to play chess by offering the child money, and more
money if the child wins. In this way, the child might learn to play chess
with some skill. But that would not mean that chess could be described
adequately as a skilled activity of a particular sort through which one
obtains money. Money is external to chess—it has nothing intrinsically to
do with it. Indeed, insofar as the child plays for money (or other goods
external to chess), the child, MacIntyre notes, will be motivated to cheat—
to contradict “those standards of excellence which are appropriate to, and
partially definitive of” chess. In contrast, insofar as the child comes to
appreciate and pursue the goods internal to chess, the child will both be
motivated to respect those standards and realize the goods found in playing
chess to an extent otherwise impossible.

The same is true for many human practices, including farming, music, and
medicine. Those who practice medicine can do so with a variety of goods in
view, but many of these goods—for example, money and social prestige—
have nothing intrinsically to do with the practice. One can readily imagine a
physician practicing medicine without pay and in a context in which she
gains no social prestige. Moreover, insofar as a physician practices
medicine for money or prestige, the physician is motivated to ignore

medicine’s “standards of excellence” if by doing so he gains more of these
external benefits. We see this whenever a physician recommends medical
interventions because those interventions increase the physician’s income.
In contrast, insofar as a physician comes to appreciate and pursue the goods
internal to medicine, the physician will respect the standards, rules, and
norms that make medicine possible, and he will also join other practitioners
in developing and extending the practice to realize its internal goods to an
ever greater depth. In this way, the practice of medicine has been
dramatically developed and extended over time.

The distinction between internal and external goods helps to explain why so
many physicians and nurses today are dissatisfied with their work.² A
physician who practices medicine merely as a job does so for its external,
extrinsic benefits. If he can obtain such benefits in a different, less
burdensome way, he will. In contrast, the physician who practices medicine
as a calling works for the benefits or goods that are realized in the work
itself—its internal or intrinsic rewards. We suggest that physicians today are
burning out and becoming alienated from their work in substantial part
because they do not experience their activity as sufficiently aligned with
and successful in bringing about the goods internal to medicine.

Several features of medicine follow from the fact that it involves active
pursuit of genuine human goods in a cooperative manner through time. For
example, medicine requires extensive effort and sustained focus from its
practitioners. As a parallel, consider the good realized in professional
soccer (football, for our non-American readers). To have any prospect of
playing professional soccer, players must train and discipline themselves for
many years. Similarly, to have any prospect of becoming an excellent
physician, medical trainees must study, train, and discipline themselves for
many years. Professional soccer players and physicians both pursue the
goods instantiated in their practices with such all-in commitment that they
must inevitably forgo other opportunities for human goods. This is not
because they believe soccer or medicine is the only activity worth pursuing
but because pursuing soccer or medicine is central to their particular
vocations.

In soccer and medicine alike, sustained effort and commitment make
possible constellations and expressions of the goods that would otherwise
remain out of reach—those available to a master but not to a dilettante (and
those available to a tradition, but not to a here-todaybut-gone-tomorrow
pastime). Most of us can enjoy the delights of recreational soccer with a
few cooperating friends, a patch of lawn, a ball, and a small window of
time. Little commitment is required. But the beautiful game of professional
soccer is achieved only because numerous people make extensive
commitments in cooperation with one another. Similarly, most of us can
bandage a minor wound or nurse a cold, but the commitments of those who
cooperate to bring about the practice of medicine make possible entirely
different levels of healing. No one who is sick wants a physician who plays
at medicine in the way that a physician might play at soccer with his
children.

Medicine requires commitments to particular goods, and also to particular
persons. Medicine requires, first, commitments to that community of
persons whose cooperation makes this social practice possible. The
comparison with professional soccer may help again: players, coaches,
trainers, owners, managers, referees, and fans all cooperate to bring about
professional soccer. They form a community constituted around a shared
good and a shared will or commitment toward that good. The members of
this community cooperate to mobilize diverse resources and to create
structures and institutions that facilitate their further cooperation—FIFA
(Fédération Internationale de Football Association), the World Cup, and so
on—so that the particular instances of goods brought about by professional
soccer might be realized.

Similarly, medicine requires a great deal of cooperation among physicians,
nurses, pharmacists, other healthcare practitioners, administrators,
educators, and of course, patients. Together they form a community
constituted around the goods that medicine seeks and a shared commitment
to pursue those goods together. The members of the community of medicine
cooperate to mobilize resources and to create structures and institutions that
facilitate their further cooperation—through hospitals, clinics, operating
rooms, professional schools, and so forth—so that the particular goods

brought about by medicine might be realized. Even a minor surgery, to
succeed, requires major commitments and cooperation.

Of course, anyone familiar with the institutions of soccer such as FIFA also
knows that those institutions can become corrupt, focused on the external
rather than the internal goods of the game. When that happens, the
institutions become not aids but threats to the practice.

Similarly, the institutions of medicine, from medical schools and hospitals
to insurance companies and regulatory bodies, can become obstacles to the
practice of medicine and its internal goods. Many of the pressures pushing
clinicians to embrace the PSM come from these institutions, which threaten
to withhold external goods and even to inflict institutional sanctions against
those practitioners who, for example, refuse to cooperate in interventions
that they believe contradict the purposes of medicine. We investigate the
Way of Medicine not least because doing so is an essential first step toward
revitalizing medicine’s institutional world.

Within the community of persons whose cooperation makes medicine
possible, patients occupy the place of honor, and the most fundamental
commitment of practitioners as practitioners is to their particular patients.
Although the term “profession” is now used widely to refer to any
specialized practice requiring study and training, classically the term
referred to medicine, the law, and the clergy. Each of these practices
responds to a profound human vulnerability, and each entails a singular
commitment to and solidarity with those who experience that vulnerability.
In the case of the clergy, the vulnerability is that of being estranged or
separated from God and the community of the faithful. In the case of the
law, the vulnerability is that of being exposed to threats posed by
adversaries and the power of the state. And in the case of medicine, the
vulnerability is that of being at risk for disease, injury, and death.

In the grip of such vulnerabilities, people need trustworthy advocates to
whom they can turn for help. These advocates must be trustworthy, first,
because the stakes are high. If a soccer player makes a mistake, his team
may lose the game. But if an attorney makes a mistake, his client may
spend years behind bars. And if a doctor makes a mistake, her patient may
die. Because the stakes are high, those who aspire to the clergy, the law, or

medicine typically must undergo long periods of training and
apprenticeship before they are authorized as practitioners of their
profession.

These advocates must be trustworthy, too, because in order to receive their
help, the one in need must entrust himself to the advocate’s care, and doing
so makes the one in need profoundly vulnerable to the professional herself.
The supplicant must entrust herself to the priest by confessing truthfully and
submitting to the priest’s ministrations. She makes herself vulnerable to the
possibility that the priest will divulge what she confesses or use her
information for personal gain. The accused must entrust himself to the
attorney by permitting her to represent him before the power of the state.
He makes himself vulnerable to the possibility that the attorney will collude
with the prosecutor to settle the case in a way that minimizes the attorney’s
work while miscarrying justice. The patient must entrust himself to the
physician by submitting to interventions with substantial side effects and
risks. He makes himself vulnerable to the possibility that the physician will
recommend the intervention that fattens the physician’s wallet rather than
the one most likely to bring healing to the patient. In all of these cases, the
one in need stands in an acute relationship of vulnerability with respect to
the professional.

Because of this vulnerability, those who practice one of these three
professions must internalize and reliably display the moral commitments
that govern that profession. These commitments become, in MacIntyre’s
terms, rules and standards of excellence without which the practice cannot
long continue. The word “profession” initially referred to taking religious
vows or otherwise publicly declaring particular beliefs or commitments. At
the heart of the professions of the clergy, the law, and medicine is a
commitment to the good of the vulnerable. In medicine, this entails a
particular kind of solidarity with one’s patients—a commitment to them that
prescinds from all judgments about a patient’s merit and engenders
distinctive and substantial obligations toward the patient.

To the question of what kind of activity medicine is, we can now say that it
is a paradigmatic practice—and to the question of what kind of practice it
is, we can say that medicine is a paradigmatic profession. Medicine arises

not from a need to bring about the greatest good for the greatest number nor
in order to satisfy an array of desires, but rather in response to the threats
that disease, injury, and death pose to the flourishing of every human being.
Medicine’s practitioners devote sustained effort and commitment to
preserve and restore those goods that are threatened. They do so in
cooperation with and commitment to a community of others who also are
concerned to preserve and restore these goods and in solidarity with those
individuals who need the goods that medicine exists to seek, preserve, and
restore.

This gives us a starting place on the Way of Medicine, but we need more.
To know what Cindy Parker, Abe Anderson, and Nora Garcia can
reasonably expect from their physicians, we still need to know which goods
medicine is for.

MEDICINE IS FOR HEALTH

Accordingly, we now make a modest proposal: medicine is for health. That
health is a human good we consider evident; health gives all human beings
a reason for action because it offers all human beings something that
contributes to their flourishing. So health is an end for everyone in their
day-to-day life, a point to which we return in chapter 2.

We acknowledge disagreements regarding both what health is and whether
health is the end of medicine, and we will address these disagreements
below. Nevertheless, we take the claim that medicine is for health to be
modest because it is so strongly supported by the evidence of authority, is
so implicitly affirmed by the practices and commitments of physicians and
patients across moral communities, and so aptly addresses the vulnerability
that patients experience, thereby undergirding the solidarity and trust that
make medicine possible. Let us address each of these points in turn; in so
doing, we identify and describe the Way of Medicine.

First, that health is the end of medicine is a proposal supported by the
evidence of authority—the considered opinions of wise practitioners of the
art for thousands of years. Though not himself a physician, Aristotle
thought it axiomatic that medicine is for health. He wrote, “Now, as there
are many actions, arts, and sciences, their ends also are many; the end of the
medical art is health, that of shipbuilding a vessel, that of strategy victory,
that of economics wealth.”³ Aristotle took these claims as starting points for
practical reason, as things known immediately by both “the many and the
wise.” Similarly, the Hippocratic Oath includes a promise to enter homes
only “on behalf of the sick,” implying that medicine’s fundamental aim is to
restore the health that is imperiled in the sick. Countless practitioners of
medicine, before and after, have made the patients’ health their goal.

Second, the proposal is implicitly affirmed by the practices and
commitments of physicians and patients across diverse moral communities,
including those who might deny that medicine has any intrinsic purpose.
Indeed, implicit agreement that medicine is (at least) for health seems to be
a necessary condition for the practice’s existence. One could not mobilize
the massive social cooperation necessary to sustain a coherent medical
profession in the absence of some shared end. Today, medical technologies
can be applied toward many different goals—something we consider in
more detail throughout the book. For the moment, we note that with respect
to many of these goals (e.g., family planning or a timely death), different
religious and other moral traditions have long disagreed. If medicine were
understood as a practice of pursuing such goals, there would be no shared
medical profession any more than there is a shared clergy profession.
Different moral communities simply would not cooperate to bring such a
profession about.

Virtually everyone agrees, however, that it is good to care for the sick so as
to preserve and restore their health. That commitment is central to Judaism,
Christianity, Islam, and other world religions, and it is championed equally
by those who do not consider themselves religious at all. That commitment
resonates with and makes sense of students’ longing to be physicians and of
physicians’ longing to become more fully the physicians they are not yet.
Indeed, though physicians, patients, and bioethicists disagree about many

things, we have yet to meet colleagues who challenge the notion that one of
physicians’ central concerns is their patients’ health.

Third, the proposal responds aptly to the particular vulnerability that
patients face and evokes the specific form of solidarity and commitment
that makes medicine the profession it is. Put another way, medicine as
oriented toward patients’ health addresses a real and significant need of
human persons. Edmund Pellegrino and David Thomasma, among others,
have argued that the particular form of vulnerability that sickness brings
gives us clear direction regarding the internal morality of medicine,⁴ or
what we are calling the Way of Medicine. If we pay attention to the
experiences of those who are sick, we find that they need a skilled helper
habituated by a resolute commitment to their good insofar as that good
involves health. The commitment to seek their patients’ health, and to do so
in solidarity with the patient as a person, allows those who are sick to
entrust themselves to their physicians. Without such trust, physicians cannot
do their work. The ethic of medicine—the Way of Medicine—is grounded
in these truths.

“WHY ONLY HEALTH?”

Health may be good, and there may be good reasons to make health a
primary focus of medicine, but why only health? Why not also direct
medicine toward any number of other goals, to bring about other states that
otherwise reasonable people also desire? It may seem nothing more than
incantation to say that medicine by its nature aims at health. Surely
medicine, a social construct, has no nature in any deep sense.

We concede a limited point: there is nothing magical about medicine as a
social practice that gives it a lock on the good of health and only that good.
The particular way in which goods are realized in a practice depends on the
structure and history of that practice. Had medicine been organized and
pursued in a different fashion, had its history and traditions been different, it
might have become a different practice with a different internal good.

However, a certain practice did develop whose primary, and even singular,
internal good was health. The question now is this: is there a reason to
maintain that traditional practice, the practice identified by the Way of
Medicine?

We think the answer is Yes but make a further concession: our argument is,
in certain respects, a prudential one. We could imagine, in theory, a
profession in which physicians aimed at all kinds of goods while also
maintaining excellence in preserving and restoring health, and did so while
respecting the further requirements of practical reason. We have not,
however, seen such a profession realized in fact. Indeed, bringing one about
seems prohibitively difficult.

The first problem is one we have already described: without a clear focus
on a common recognized good, it is not possible to engender the social
commitments and cooperation necessary for an appropriately capacious
practice of medicine. Suppose that doctors were thought to be merely
powerful wielders of technology, serving the desires of the highest bidder or
the demands of the most powerful institution. What reason could we have
for trusting such doctors? Indeed, would it not be more reasonable for those
who are sick to hold back from entrusting themselves to such “physicians”?
Without trust spread broadly across a variety of moral communities, a
public profession of medicine will steadily disintegrate into rival camps that
use the powers at their disposal to pursue different and ultimately
irreconcilable goals.

That is not to say that the Way of Medicine is monolithic; it allows for
diverse practices as long as those practices share the pursuit of health. The
good of health allows for complexities and ambiguities, and different moral
communities will disagree about how and how much to pursue health
relative to other goods. They may even disagree on the margins about what
health is. A focus on their patients’ health, however, allows clinicians and
patients even from diverse moral communities to trust one another in
pursuing this limited but crucially important shared goal.

Another problem is that of focus and differentiation. Consider again a
professional soccer player. If he begins to use his remarkable foot dexterity
to kick field goals in US football, and then to dance rumba, and then to

compete in mixed martial arts, at some point he becomes not a professional
soccer player but a highly skilled user of his feet. As the scope of his
footwork expands, the excellence of his soccer playing will likely diminish,
and some uses of foot dexterity may come to contradict his commitment to
soccer. (For example, kicking another player would conflict with the
internal norms of soccer, and kickboxing might result in injuries that cripple
his soccer play.) As a result, professional soccer players generally focus on
soccer, not on making things happen with their feet. Similarly, insofar as
physicians use the technological powers at their disposal to pursue a wide
array of outcomes, they necessarily become less expert and skilled at
pursuing their patients’ health.

Moreover, as we further consider throughout the book, some uses of
medical technology not only distract practitioners from their pursuit of their
patients’ health but come to contradict that pursuit or otherwise violate the
requirements of practical reason. Some alleged healthcare services directly
destroy health or other basic human goods. Some satisfy wishes for that
which is not good. Some undermine the conditions necessary for patients to
entrust themselves to clinicians when they are sick. Some services are
simply unfair. By detaching from medicine’s orientation to health, the PSM
sets aside the internal resources practitioners need in order to resist
temptations to abuse their medical powers.

History is punctuated with episodes in which medical powers were abused.
Tellingly, in each case the commitment to the patient’s health was either set
aside or directly transgressed. Many readers are familiar with the Tuskegee
experiments, in which physicians tracked African American men suffering
from syphilis for years without treating them. In that case, doctors set aside
concern for the health of their patients in order to use the patients to pursue
scientific knowledge. We could similarly consider the medicine of National
Socialist Germany, which was in its time the most scientifically
accomplished medical system in the world. There, by trading the health of
the patient for the “health” of the “Volk” (the nation), German medicine
became the instrument of mass torture and murder.⁵ Or again, we could
look at the eugenics movement in the United States, in which physicians
forcibly sterilized thousands of women to realize a dubious vision of
“population health.”⁶ Wherever medicine as a social institution has gone

badly wrong, it has ignored or abandoned its commitment to the patient’s
health in order to harness medicine’s powers to achieve other social goals.
Keeping the health of the patient as the end of medicine shores up a wall of
defense against such abuses.

WHAT IS HEALTH?

Even if you agree that medicine has a purpose and that the purpose is
health, it remains necessary to define “health” further, which poses
difficulties. Health is a reality of such breadth and depth that it cannot be
known with the same precision as mathematical algorithms. Any definition
of health will necessarily be incomplete and will allow, at least on the
margins, for uncertainty and ambiguity. For some, perhaps particularly for
those conditioned to regard scientific knowledge as the highest form of
understanding, that health cannot be defined with precision will be deeply
unsatisfying. If health cannot be defined with clear margins, of what use is
the concept in specifying the purposes of medicine?

We can still know much about health, because it and its absence are
intrinsic to human experience, as they are also to the lives of nonhuman
animals. Indeed, the fact that diverse and plural cultures all give rise to
healing professions testifies to the way health and the absence of health
make themselves known as facts of human experience and are accessible to
the inquiry of reasonable people. However, in light of the kind of reality
health is, we do well to heed Aristotle’s admonition that we not demand of a
subject matter more certainty than it allows.⁷ In that spirit, we start with
what seems obvious regarding health, and we draw distinctions where
necessary for clarity.

In this task we are deeply indebted to the work of Leon Kass. In the
following paragraphs, we articulate and extend certain aspects of Kass’s
inquiry into the nature of health.⁸ Throughout the rest of the book, we
consider further what health is by examining health in particular clinical

contexts, and we show that the way one defines health dramatically shapes
the way one understands physicians’ responsibilities.

The Way of Medicine makes two claims about health and objectivity. First,
health is an objective bodily norm for all living organisms. “Norm” here
does not mean a moral norm; rather, living beings have characteristic bodily
activities and tendencies, and these activities and tendencies determine what
is appropriate—the norm—for them in regard to the well-working of their
organic bodies. Hence, there are objective facts about what health is for any
organism, and being right or wrong is possible with respect to questions
about an organism’s health. When organisms display the health-related
norm(s) for members of their kind, we can say that they are healthy.

Second, human health is an objective human good; health is grasped by
human agents as worth pursuing. Likewise, such agents grasp that not
valuing health would be unreasonable and that states of ill health are to be
avoided. Health as a bodily norm and health as good are related, of course:
health could not be objectively good if there were no facts about what
health is. But the two forms of objectivity differ: the health of nonhuman
organisms is, like human health, an objective bodily norm for those
organisms, yet it is not a human good.

The Way of Medicine takes human health to be objective in both senses:
knowable in fact and genuinely good. Denial of either claim leads directly
to the PSM, for if health either is not real or is not good, patients have no
intrinsic reason to choose health rather than other desired states; nor do
physicians have any intrinsic reason to make health central to their practice
and profession.

Our claim here should not be misunderstood by reference to a particular
dispute that characterizes the current philosophy of medicine. Philosophers
disagree about whether health is an objective or an evaluative concept;
philosophers advocating the former are attracted to naturalistic accounts of
health, often based on the notion of statistically normal function.⁹ Those
who advocate for the latter hold that what we value determines what we
consider to be healthy.¹⁰

Our view differs from both accounts. Against the former, we hold that
living beings are genuinely teleologically ordered. As we will discuss
below, organisms have characteristic activities that serve their biological
life form, and that life form establishes the objective norm for the
organisms’ healthy functioning, not mere statistical regularities. Against the
evaluative view of health, we distinguish between health’s being an
objective bodily norm and health’s being objectively desirable or valuable.
Whether an organism is healthy does not depend on whether health is
desired or valued. Hence, one can recognize a squirrel’s health, as we do
below, without incorporating any judgment that the squirrel’s health should
be pursued or protected.

What, then, does it mean to say that a living being is healthy? What is the
health that the medical profession serves? Here we make four points about
what health is, then clarify in certain respects what health is not.

First, the domain of health, in its primary meaning, is not that of parts but of
wholes. When people speak analogically of healthy marriages or healthy
communities, they are concerned with those realities as wholes, and the
same is true of health in its paradigmatic sense. Health is a matter of what is
true of an organism, the living biological whole that in fact precedes,
metaphysically and temporally, the healthy differentiation, growth, and
development of its parts.

The term “health” can obviously also be applied to parts of the organism, as
to a “healthy liver” or a “healthy heart.” But such descriptions are still
clearly dependent on our understanding of the health of the whole. A liver
or heart is recognized as healthy when it is in a state that serves the health
of the whole organism. Likewise, the health of the whole organism is more
than the sum of the health of its parts. An organism may have all its parts in
apparent working order and yet be in ill health. We see this in patients with
syndromes of medically unexplained symptoms.¹¹ Or an organism may have
a deficient or absent part and still be in good health, as we see in many
patients who have lost a kidney or spleen, even a limb or an eye. Finally, we
know from experience that physicians readily sacrifice a part for the health
of the whole, as they do when removing a crushed finger or an infected

gallbladder. All these truths testify to the primacy of the organism as a
whole in thinking about health.

Second, health is associated importantly with activity. Kass describes health
aptly as the “well-working” of the organism as a whole. This emphasis on
activity militates against the forms of reductionism that equate health with
static conditions and abstractions, such as lab values in the expected range,
clear radiographic studies, and unremarkable physical exams. In being
characterized by activity, health resembles courage or strength, which
would not exist unless manifest in action—and it is unlike beauty or stature.
Activity does not imply constant movement, of course; thinking, resting,
and sleeping are all activities that require and display health. For humans,
each is an essential aspect of the well-working of the whole.

Third, the health of an organism and its health activity must be judged, to a
certain extent, with sensitivity to the organism’s context and state of
development. The health of a thirty-year-old woman differs from the health
of a thirty-year-old man, and the health of both differs from the health of a
ten-year-old of either sex. A healthy ninety-year-old experiences extensive
diminishments of health relative to a typical twenty-year-old, yet we can
still distinguish between a healthy and an unhealthy ninety-year-old.
Similarly, what it means for a person who has a conspicuous disability to be
healthy differs from the perception of health of a person who does not.¹²

These differences, present within the population of a species, are more
pronounced between species. Hence, our fourth point is that health is
species-specific. The health of a dolphin differs markedly from that of a
squirrel. The health of both is manifest in the activities they perform as the
sorts of organisms they are. Being different kinds of organisms, with
different natures, their health is different, but in each case we can still speak
of the well-working of the organism as a whole. Thus, no one would
suspect a squirrel to be in ill health simply because it cannot swim at high
speeds under water. And no one would suspect that a dolphin is ill because
it cannot climb trees. The signs, expressions, and realizations of health vary
from species to species. Human health is more complex because the
characteristic activities of healthy human beings are more varied and
diverse than those of other organisms. This complexity makes it difficult in

some cases to make judgments about health and how to pursue it, as
subsequent chapters show.

Do all of these complexities indicate that health is merely a subjective
notion, merely a socially constructed concept? They do not. Something can
be relative in certain respects while still being objective. Health is objective
if there are matters of fact concerning whether some individual organism is
healthy, but to discern such matters of fact, one must recognize truths that
are relative to that organism’s species, stage of life, and particular
circumstances. Indeed, health can be subjective in certain respects while
still being objective: a clinician may be unable to find anything objectively
wrong, but we believe (with Kass) that if the individual sincerely believes
she is unhealthy, then to that extent she is. More investigation may be called
for in order to determine, if possible, what has gone wrong, but individuals
do have a certain epistemic authority in determining whether they are
unhealthy.

Health can easily be confused with proximate or related concepts. Health is
not the same, for example, as having the least possible risk of future injury,
illness, or death. Playing soccer professionally requires a high degree of
health but also risks injuries that could be avoided by refusing to play
soccer. It does not follow that standing on the sidelines displays greater
health than does playing in the game. Similarly, health makes pregnancy
possible, while pregnancy also poses risks to health. One who is sterile does
not display greater health, however, than one who is capable of pregnancy.

Nor is health the absence of suffering. It is true that physicians have always
prioritized relief of suffering. “To cure sometimes, to relieve often, to
comfort always,” the maxim goes. Poor health is, of course, suffered, and
many conditions that diminish health also induce pain and other symptoms
that elicit suffering. Yet we also could draw up a long list of conditions
people suffer that may affect their health but are not themselves signs of the
absence of health. Those who are poor suffer want of finances, and those
who lose loved ones suffer heartbreak, to give just two examples.
Distinguishing suffering from health has decisive implications for medical
ethics, as we note throughout the book. To foreshadow a bit, we observe
that some people today, insofar as their experience goes, suffer the

conditions of having male genitals, small breasts, or short height, or even
being alive. If physicians equate health with the absence of suffering, they
will try to relieve these and other conditions. This hubristic aspiration leads
physicians, in the words of McKenny, “to relieve the human condition.”¹³

The distinction between suffering and ill health raises an important
question: what about mental health?¹⁴ The challenge is to define “mental
health” so that it includes the well-working of an organism’s mental and
psychological capacities, but it does not expand to require the absence of
suffering we just described, nor happiness, nor the satisfaction of every
desire. On one end of a spectrum are conditions that seem clearly to
represent deficits in mental health: schizophrenia or catatonic depression, to
give two examples. On the other end of this spectrum we find sadness,
anxiety, grief, or rambunctiousness that are often described as mental and
behavioral illnesses but do not clearly display a deficiency of one’s health.
Often it is not possible to draw a bright line between conditions that display
ill health and those that do not. Making these distinctions requires both
good clinical judgment and the humility to recognize the limits of such
judgment. What medicine should pursue is the mental capacity that makes it
possible to experience happiness, sadness, and other emotions in the way
that humans experience them when they are well-working, and to make
choices and behave in ways that humans are capable of when they are well-
working. Medicine oriented to health will not seek to bring about a
particular emotional state or a particular set of choices and behaviors as
such. By analogy, medicine would seek to preserve or restore the capacity
that makes it possible to play a musical instrument, not to determine which
notes are played or to ensure that the music remains in a major key.

Finally, although we have noted that the state of health is also objectively
desirable, and hence an aspect of human flourishing, the state of being
healthy does not encompass all that goes into human flourishing. The World
Health Organization errs when it defines health as “a state of complete
physical, mental, and social well-being.”¹⁵ A related error is made by the
agrarian poet and social critic Wendell Berry, whose work emphasizes that
human beings flourish only in community. Berry defines health as
membership and argues that the smallest unit of health should be the
community; thus, “to speak of the health of an isolated individual is a

contradiction in terms.”¹⁶ Such accounts, though admirable as critiques of
reductionism and individualism, problematically raise health above other
human goods, making health not merely one human good but the state of
human flourishing that encapsulates all human goods. If the end of
medicine is health so understood—if medicine’s purpose is to bring about
the fullness of life, the Hebrew concept of “shalom,”¹⁷ the World Health
Organization’s vision of complete well-being, or even Berry’s vision of
membership—it seems that physicians have a wide-open mandate. All is
their responsibility, all their domain.

Health so understood is not useful for guiding medical practice. Imagine a
man who says that he is going to see his physician because he recognizes
that he has an unhealthy relationship with his neighbor or he wants to work
on getting his finances into better shape. When terms for health are
expanded to encompass all aspects of human well-being, the term may
inspire but it no longer proves useful, especially not for naming the thing
that medicine is for.

According to the Way of Medicine, health is the end or purpose of
medicine, the principal goal that medicine seeks, the principal good that is
realized internal to medicine’s practice. But “health” here is meant in a
limited, circumscribed, and embodied sense: what Kass describes as “the
well-working of the organism as a whole,” realized and manifested in the
characteristic activities of the living body in accordance with its species-
specific life-form.¹⁸ We believe this account captures the primary meaning
of health. Health so understood is also a good that can be pursued for its
own sake as one—but only one—constitutive aspect of human flourishing.
It is additionally, of course, a condition for the possibility of pursuing other
human goods. According to the Way of Medicine, human health understood
in these two dimensions—as an objective bodily norm and as an objective
human good—grounds medical practice and the medical profession: it is the
end that takes precedence over others in the practice of medicine, one that is
not to be abandoned or violated by those who profess a vocational
commitment to it.

Their health, therefore, is what Cindy, Abe, and Nora can reasonably expect
will form the center of their relationships with all healthcare professionals
through all stages of their lives.

CHAPTER TWO

The Requirements of Practical Reason

Having argued that medicine is for a patient’s health, we now consider how
medicine’s pursuit of the patient’s health depends on and is accountable to
ethics: the broader requirements of practical reason. The questions that
concern us throughout this book are practical. They concern action—not
action considered impersonally from a spectator’s point of view but action
considered personally from the standpoint of one who must decide what to
do. Practical reason considers questions about particular actions as well as
lives as a whole. Humans rightly ask not only “What should I do?” but also
“How should I live?” And “What kind of person should I be?”

Members of the medical profession clearly need to ask both kinds of
practical questions. With respect to particular actions, the questions include
the following:

•Should I inform this patient of the terminal condition she has, even though
it might seem to do no good and might even distress her and cause her
suffering?

•Is it permissible to counsel or provide contraceptives or abortion to those
who seek to avoid or end unwanted pregnancies?

•Must I respect this patient’s wishes that I not provide further nutrition or
hydration, that I provide sedation to the point of unconsciousness to
alleviate her anxiety, or . . . ?

The medical professional’s life is filled with such questions, and the
medical practitioner needs an adequate framework for thinking about how
best to answer them.

With respect to questions about lives as a whole, the questions include
these:

•What sort of doctor [or nurse or therapist] should I be?

•What are the fundamental commitments of my profession around which I
must orient my life?

•What sorts of virtues must I have, and how must I discipline my mind,
will, and emotions in order to become and remain a good practitioner of
medicine?

•How does being a health-care practitioner fit into my other life-shaping
commitments, including my commitments to family, to neighbor, and to
God? Are these parts of my life walled off from one another? If not, which
should take priority, and how should conflicts be negotiated when they
arise?

These questions involve how a person should live, and they cannot be
answered solely by thinking about the practice of medicine and its internal
good, for they concern the relationship of that practice and its good to the
other practices, goods, and values in a person’s life.

The practice of thinking critically about all of these questions and
subjecting the possible answers to reflection and scrutiny is that part of
philosophy that can be called ethics, or practical ethics. Aristotle kept the
practical nature of ethics squarely in focus when he composed his
Nicomachean Ethics.¹ Engaging in ethics, he wrote, is for the sake of taking
action. Some philosophers focus primarily on theoretical questions
regarding ethics—for example, questions about the meaning of moral
language—but in this book we approach ethics practically, as Aristotle did.

Our understanding of practical ethics is deeply shaped by the tradition of
natural law ethics. There are many distortions and abuses of natural law
reasoning, particularly those that have defended an unjust arrangement of
institutional and social power as “natural” or as expressing the “law of
nature.” These are not what we mean by a natural law ethics. Rather, a
natural law ethics is an attempt to discover the deepest practical principles
of human flourishing and to work out the implications of those principles in
norms for concrete action. These principles and norms are what we identify
as the requirements of practical reason—that which practical reason
prescribes when functioning properly. We will argue that this natural law
approach to ethics is superior to consequentialist, deontological, and
principlist approaches with respect to both moral decision-making in
general and medical decision-making in particular.

HUMAN ACTION AND HUMAN GOODS

Let us start with questions about action: Why do we ever act at all? Why
not simply be, resting in our own personal existence without strain or
effort? Surely part of the answer is that human beings in many important
respects exist as beings who are “not yet fully formed,” who can and must

shape themselves by choice and action in order to become more fully what
they are capable of being.

No one comes into existence already married, for example, and no one
comes into existence already a doctor. Even upon reaching these states, no
one is “all done” being either married or a doctor. Rather, being married or
being a doctor requires choices and actions that build up our existence as
married persons or doctors, fulfilling potentials that we had. But potentials
for what? To what does reason direct us? Practical reason’s most
fundamental principles direct us toward human flourishing.

What does “flourishing” mean? Sometimes people talk about “happiness”
or “joy” as synonyms for flourishing, but these words can mislead:
happiness can be taken as a state of simply feeling good, and joy can be
thought of as experienced only momentarily (even if frequently). In
contrast, by “flourishing” we mean a state of being truly well off as human
beings, and sometimes what feels good does not makes us truly well off.
Moreover, being well off as a human being is something that characterizes a
life over time, not just isolated moments. So neither “happiness” nor “joy”
captures fully the notion of flourishing, though happiness and joy
accompany flourishing in some measure.

Nor is flourishing a self-centered notion, as happiness sometimes is. Human
beings are well off and flourish only in community, in relationships with
one another, as Wendell Berry reminds us. This point is central in
considering the doctor-patient relationship and the importance of patients’
relationships to their families. In this way and others, the conception of
flourishing we advance differs significantly from what some thinkers have
called the self-expressive individualist model of happiness. At its worst, the
latter model urges, “If it feels good, do it,” reducing human action to
expressions of undisciplined self-interest.

In contrast, practical reason begins with human goods. Human action is
always oriented toward something perceived as beneficial or good, even
when that perception is mistaken. We act for the sake of bringing about
something that promises us or others like us some benefit, and this is where
we find the foundations of all practical thought: in basic goods that are
intrinsic aspects of human well-being or flourishing.

By using “basic” and “intrinsic,” we are distinguishing the goods at the
foundations of ethics from others that are only instrumental and derivative.
Consider the goods of money and medicine. These goods are good only
insofar as they promise to bring about something else that is desired. But
practical reason starts with those goods that are desirable in themselves for
their own sake, because they themselves make all human beings better off
and contribute to their flourishing. Basic goods include life and health,²
knowledge, aesthetic experience, friendship, integrity, religion, and
marriage.³ Each of these particular goods benefits people in unique and
irreducible ways. The way we flourish as human beings in attaining
knowledge differs from the way we flourish in attaining health. Human
flourishing is not reducible to one of these goods, and so, as we will see, a
life characterized by flourishing requires some ordering principle within it.

Even bad decisions and lives guided by evil are typically directed at real
and basic human goods. Consider again the Tuskegee scandal. This
decades-long experiment was a terrible failure of medical morality, yet it
was driven by interest in two goods we consider basic: knowledge and
health. This presents an essential concern of ethics: how do we get from
awareness of the basic goods of human action to making moral decisions in
pursuing those goods?

CONSEQUENTIALISM

One answer that many philosophers have defended is that we should
maximize goods when making moral decisions.⁴ In maximizing, one
accounts for all the beings who will be affected by an action, and, as Jeremy
Bentham asserted, one promotes the greatest good for the greatest number.
Bentham was the founder of the view called utilitarianism; utilitarians
thought that the good to be maximized was pleasure. Other utilitarian
thinkers take different views of what is to be maximized, but we refer to all
views of this sort as consequentialist, for they all take the goodness or

badness of consequences as the primary consideration in making moral
judgments.

We have argued elsewhere, at greater length, against consequentialism, and
so a few remarks will suffice here.⁵ First, consequentialism has at least
surface problems with the concepts of justice and rights. Justice and rights
seem to be “trumps” against attempts to maximize goodness when that
maximization would be unfair to some or would violate basic human rights
—for example, threatening persons with enslavement or torture. Second,
consequentialism presents significant problems in its demand that we
consider all of the consequences that follow from our actions. Our
knowledge of such consequences is limited, and that which would fail to
maximize consequences in the short term might bear unforeseen but
beneficial fruits over time.

The third and most important point to make about consequentialism, and
specifically about maximization, is that it cannot work even if consequences
could be foreseen reliably, because instances of the goods that are
fundamental aspects of human well-being and flourishing cannot
themselves be weighed against one another rationally. For example, what
do person A’s long-term health and person B’s longterm knowledge have in
common that would provide a metric by which we could say that there is
greater goodness in A’s health or B’s knowledge? Health and knowledge are
different goods, and these persons are different persons. The options at
stake in a decision to, for example, pursue an experiment at the cost of A’s
health or desist at the cost of B’s knowledge seem incommensurable—they
do not have a common measure of goodness between them that would make
maximization possible. Nor are the values of persons’ lives
commensurable: each person’s life is uniquely and immeasurably valuable.
We cannot say without qualification, therefore, that this one person should
be sacrificed in order to save those two, three, or twelve.

Indeed, even options that a single good generates do not seem genuinely
commensurable. Medical professionals and patients regularly face options
in which different health benefits are offered, usually accompanied by
differing health burdens. A proposed course of surgery plus radiation
treatment might offer a patient hope of a longer life, albeit with

considerable side effects such as nausea, pain, and reduced energy. A
proposed watchful waiting approach might offer hope of preserved energy,
appetite, and freedom from disabling pain, albeit with considerable risk of
dying sooner. Does one of these options offer all the good of the other plus
more? If it did, there would be no need for choice; we would be irrational
not to take the greater good. But choice is required. The benefits and
burdens of each option differ, and they allow for no common scale of
goodness or value through which to resolve one’s deliberation.

THE FIRST MORAL PRINCIPLE

What, then, should characterize our relationship to those goods that are
basic aspects of all human beings’ flourishing? How can we make upright
choices when faced with options that involve incommensurable goods and
persons? The basic norm would seem to be as follows: in acting and
willing, always be fully open to the goodness of the goods and to the
persons for whom those goods are good. This seems to be a demand of
reason, and hence a requirement of practical reason. Practical reason orients
us to the goods as we consider what to do, and reason recognizes those
goods as giving a point to what we do. Reason, then, requires that we not
close ourselves off to goods and persons.

First, let’s consider how emotion or prejudice might lead us to be less than
fully open to human goods or persons. Consider a situation in which we
very much want to experience the benefits of a particular good. This good
especially appeals to us or plays an important role in our own or our loved
ones’ lives. All humans respond more immediately, on some occasions, to
some goods rather than others. For example, a particular opportunity to
obtain knowledge (say, by reading a book) may seem tedious by
comparison with a desirable opportunity for play. On some occasions,
options are not merely tedious but painful—going through surgery, working
through a difficult rehabilitation, or telling a patient an unpleasant truth. On
still other occasions, the good at stake seems of overwhelming importance

because it is under threat: our life, for instance—or our career, our family,
our religion, and so on.

These responses are understandable, but under the influence of emotion, we
sometimes make choices that are not fully open to all goods but instead
privilege one or another in an unreasonable way. We might simply choose
directly against one good for the sake of another: we deliberately inflict
harm on one person for the sake of benefiting someone else, or we
deliberately damage one instance of a basic good for the sake of another.
Such actions make sense only if goods and good options are weighable.
Harming or destroying a good for the sake of some other good makes sense
only if that other good is a greater good. Yet the notion of “greater good” is
out of place in speaking of basic goods.

Thus, a norm emerges from consideration of the rational requirement of
openness to all goods: one should never directly damage or destroy one
instance of a basic good for the sake of some other or “greater” good. Of
course, one should not damage or destroy an instance of a basic good out of
hostility, either, whether hostility toward that good or toward the person
experiencing the good. So this norm can be broadened: one should never,
for any reason, directly damage or destroy an instance of a basic human
good. This norm is echoed in the Way of Medicine’s millennia-old
commitment to do no (intentional) harm. We might say that practitioners of
the Way have seen in the domain of medicine and the basic good of human
health a genuine requirement of practical reason, and they have sought to
respect that requirement in the norms of their practice.

Another requirement of reason has a justification similar to the previous
one. Suppose we are attached not just to some good but to some person.
Such attachment is often quite reasonable: we have attachments to our
children, spouse, and parents, as well as to our neighborhood, workplace,
and church. These attachments play a legitimate role in our moral
deliberations. Sometimes, however, our emotions lead us to privilege some
persons over others in ways that are unreasonable. For example, we allow
our daughter to take a greater share of something than the other children,
because she is ours; maybe we cheat in our effort to get into medical school,

thus privileging ourselves over others who are more qualified. How can we
test for this kind of arbitrary privileging in our personal attachments?

One traditional test is the Golden Rule: do unto others as you would have
them do unto you. When our privileging diminishes others in such a way
that we would resent such privileging were we on the receiving end, we
have reason to think that we are acting unreasonably, arbitrarily, and
unfairly. Similarly, when we treat others less well than we would expect our
loved ones to be treated, we are again acting unfairly. A norm of fairness,
clearly violated in the Tuskegee experiments, emerges from the requirement
to be open to the goods in all persons.

Of course, sometimes our commitments require that we give some people
special treatment: physicians’ commitments to their patients, for example,
create a special space in their lives for those patients and their needs. But
this seems clearly fair: everyone has reason to accept the possibility of such
special commitments, for without them, there could be no medical
profession, no doctor-patient relationships, none of the benefits that come
from a doctor’s special knowledge and even her friendship with her
patients.

At the same time, the Golden Rule—the norm of fairness—does chasten
even such commitments to patients. Physicians will find some patients more
pleasant or attractive than others, as does any teacher with respect to her
students. When those feelings are allowed to unduly shape medical practice
or teaching, a key requirement of practical reason has been violated. To
choose one visible example, consider the case of Jahi McMath, an African
American teenager in Oakland who was diagnosed as brain dead following
a terrible complication of a minor surgery. As described in the New Yorker,
biases of race and class appear to have affected how medical professionals
and professional ethicists treated Jahi and her family.⁶ Insofar as that is true,
such treatment was unfair and did not adequately meet the requirements of
practical reason.

PRINCIPLISM AND KANTIAN ETHICS

Medical ethics as a field emerged in the twentieth century partially in
response to abuses and scandals in the medical profession and partially
because the profession seemed insufficiently self-critical with respect to its
ethical commitments. The emergence of new medical technologies added
fuel to the fire by generating dilemmas that seemed to call for new forms of
deliberation. “The Belmont Report,” issued by the National Commission for
the Protection of Human Subjects of Biomedical and Behavioral Research,
identified three principles to govern moral action in biomedical research:
respect for persons, beneficence, and justice.⁷ Within a few years, Thomas
Beauchamp, a philosopher and original member of the commission, and
James Childress, a theologian, had revised and expanded these to four
principles to govern the practice of medicine: autonomy, beneficence,
nonmaleficence, and justice.⁸

Beauchamp argued that what has come to be called principlism marked an
important advance in bioethics. Doctors, he explained, had been attending
only to beneficence and nonmaleficence—to doing good and avoiding evil
—and so had come to overlook abuses of patient autonomy, as when
patients were treated without their consent, and abuses of justice, as when
vulnerable populations such as disabled children or poor black
sharecroppers were exploited as research subjects. Principlism not only
responded to insufficient self-reflection, expanding medical technologies,
and abuses of medical ethics; it also seemed to overcome an intractable
dispute between two competing schools of ethical thought:
consequentialism (discussed above) and Kantian deontology (discussed
below). Consequentialists and Kantians espouse different and irreconcilable
first principles, but Beauchamp and Childress discovered that even persons
with radically different moral foundations could agree on so-called mid-
level principles. Principlism appeared to advance bioethics by providing a
common approach, even if it eschewed moral foundations.

Interestingly, a number of competing approaches arising in response to
principlism also avoided first principles. Bernard Gert and K. Danner
Clouser put forward a rule-based approach similar in many respects to
principlism, and Albert Jonsen and Stephen Toulmin advocated an approach

based on casuistry that looked at paradigm cases and worked by analogy
from there to uncertain cases. Theorists including Edmund Pellegrino and
David Thomasma defended approaches centered on the virtues that medical
professionals should have.⁹

These approaches have varying strengths and weaknesses, but all (with the
possible exception of Pellegrino and Thomasma’s) share an opposition to
foundationalism, to beginning from first principles from which norms (or
rules, principles, or even virtues) are derived. Instead, these approaches
typically work with the concept of reflective equilibrium, which involves
moving back and forth between general and abstract norms and concepts,
on the one hand, and the features of particular cases, on the other. Many
people, especially those engaging in actual clinical practice and not
operating “by theory,” have found these reflective equilibrium-based
approaches refreshingly practical. Notwithstanding their flexibility and
practicality, in our view these approaches fail insofar as they lack moral
absolutes.

Note that we are not claiming that one right answer always exists for
everyone and everybody. In very many circumstances, various options are
all morally permissible. In many other circumstances, one cannot determine
what should be done without taking into account the personal character,
choices, commitments, and features of the agents in the situation. No
impersonal algorithm can churn out the right answer for everyone in a
similar situation. Accordingly, one needs the virtue of prudence, along with
a willingness and ability to reflect on one’s particular situation, in order to
arrive at reasonable decisions.

So in speaking of moral absolutes, we do not claim that some onesize-fits-
all model should settle all moral questions, but we do claim that some
actions never should be performed, regardless of the circumstances.
Historically, the medical profession has acknowledged such moral
absolutes. The Hippocratic tradition, for example, held that physicians
should never kill, and this norm that arose in a pagan society has been
affirmed in Jewish, Christian, and Muslim cultures. It is hard to see how
ethical approaches that have no foundations can support this or other
absolute norms. Rather, nonfoundationalist approaches, particularly

principlism, commit to balancing or weighing competing principles in
different circumstances based on the features of each individual case. But if
all principles (or rules, cases, or virtues) may be weighed against one
another, and if all are subject to possible revision in light of a particular
circumstance, none are absolute. Nothing, that is, can be ruled out
altogether before considering the circumstances.¹⁰ Thus the seemingly
absolute demands of human rights—against acts such as rape, torture, and
killing the innocent—cannot be absolute after all within a framework like
principlism. In contrast, our approach leaves room for these and other moral
absolutes.

A related difficulty with principlism and many of its descendants is that
they give no account of what is good.¹¹ Consider autonomy, the first of the
four principles. Respect for autonomy is essential in medicine, but why?
What good or goods does respect for autonomy serve? Similar questions
arise with respect to beneficence and nonmaleficence. If we are to do good
and avoid doing evil, we must know what is good. Even justice requires an
account of what is good, insofar as justice often involves rightly distributing
goods and is premised on concern for the good of others.

In this light, we need to unearth the foundations of ethics and seek an
account of what is truly good. In our proposal regarding the basic goods, we
attempt to provide the deeper content necessary to make sense of
Beauchamp’s and Childress’s midlevel principles, the casuistry of Jonsen
and Toulmin, and so on. Moreover, these basic goods allow us to identify
moral absolutes, actions that should never be taken precisely because they
involve acting contrary to a basic good. Such actions violate the principles
of beneficence and nonmaleficence by contradicting genuine goods and
thereby human flourishing. They violate justice because they disregard the
good of another.

Similar points can be made about Kantian ethics. In his attempt to drill
down to the foundations of morality, Immanuel Kant held that a
“categorical imperative” was an absolute prescription of reason and that the
categorical imperative could be formulated as follows: “Act in such a way
that you treat humanity, whether in your own person or in the person of
another, always at the same time as an end and never simply as a means.”¹²

Put another way, Kant saw the foundation of ethics as resting on a principle
of respect for persons. Human beings are never to be treated as mere things
—disposable or usable for others’ purposes—but rather must be treated as
beings of noncontingent, immeasurable worth. Kant’s approach has obvious
merits when we consider experiments performed on the unconsenting and
unsuspecting not for their own benefit but to serve others’ interests. But
Kant also left out of consideration, quite deliberately, concern for human
good. In Kant we find a prototype of what later came to be described as
prioritizing the right over the good, a feature of Kantianism that prevents
one from determining the content of what respect for persons requires.

This content-thin feature of Kantianism is especially conspicuous in the
work of thinkers who reduce respect for persons to respect for persons’
autonomy. What does respect for another as a person mean? It means, on
one account, respecting another’s capacity to respond to human reasons. In
that construal, we violate the categorical imperative when we act toward
another without giving reasons and obtaining acquiescence in those reasons
—in other words, when we act without the other’s informed consent.

But this account of respect also seems thin, reduced to respecting what the
other happens to want. Without an account of what is genuinely good for
human beings, we have no objective standard against which to judge
whether a reason is good—whether, for example, what a patient wants
aligns with or contradicts her genuine welfare or flourishing. We are not
here advocating overriding a patient’s refusal; there are good reasons to
respect and insist on patient consent. Nevertheless, if the doctor is to give
good reasons, and if the patient is to consider and make an autonomous
decision on the basis of those reasons, both parties must have access to
some standard for good reason. That standard, we argue, is found in the
basic goods and in openness to all such goods in all persons.

The inheritors of the right-is-prior-to-the-good maxim have played another
important role in the emergence of the provider of services model (PSM),
specifically in its development as a matter of politics. Followers of the
political philosopher John Rawls have used that maxim, as well as Kantian
thought about reasons and respect for persons more broadly, to argue that
only “public” reasons are legitimate for public deliberations and debate.¹³

That view has radical consequences for the role of religion in bioethics,
especially in bioethics as it plays itself out in political debate, deliberation,
legislation, and adjudication. The Rawlsian emphasis on public reason
threatens to push religious considerations out of the public sphere—with
respect not only to politics but also to the public practice of medicine.
Medical professionals, in a Rawlsian model, must resist the influence of
religious reasons on their professional deliberations and clinical practices.
We assess and criticize this claim in our final chapter, when we take up
conscience and medical ethics. But in this chapter the topic of religion
raises a somewhat different though ultimately related issue. Religion clearly
plays an ordering role in some agents’ lives, a role that could be described
as vocational; medicine also seems to play such a role.

VOCATION

At the foundation of ethics we find basic human goods that are never to be
violated. But any ethic concerned with human flourishing needs more than
prohibitions; it also needs an ethic of pursuing human goods.

According to practical reason, how should this pursuit of human goods be
organized? Why organize at all? Why not simply pursue human goods
serially, acting for the sake of this good now, of that good then, in
accordance with whatever seems appropriate and desirable in each
situation? This question almost answers itself. A life characterized by
pursuing goods in such a serial manner, without organization or structure,
will inevitably be shallow and chaotic in ways detrimental to human
flourishing.

Consider, for example, the following sorts of difficulties. First, such a life
could not achieve excellence at anything. Many instances of basic goods
can be realized only through sustained effort and commitment. Although
one can learn new things from social media and play at the guitar in one’s
spare time, one cannot realize the good of knowledge available to a first-
rate scholar without years of study or the goods of play and aesthetic

experience available to a professional guitarist without years of practice.
Similarly, a physician cannot bring about her patients’ health without first
committing to decades of study, practice, and work. Sustained commitments
are necessary to realize basic goods in any depth.

Second, achieving basic goods often requires making commitments to other
persons. In many cases, pursuit of a good is best organized socially. One
cannot become a doctor or a philosopher, for example, without cooperating
with other persons. Moreover, some goods are social by nature: no one
flourishes, for example, without the good of friendship, yet friendship
involves committed relationships with other persons. Achieving basic goods
requires a settled will to work with and for others.

Third, once one starts to make commitments—to a profession, a spouse, a
church, and so on—one quickly encounters apparent conflicts between
these commitments. Therefore, one must put one’s commitments in order to
be genuinely oriented to human flourishing. We need something like a
rational life plan for our actions and lives.

Even so, the idea of a rational life plan fails to capture adequately what we
are addressing. First, the language “rational life plan” seems to suggest that
we have the power, through a firm will and expert planning, to author our
lives as we see fit, but this surely is an error. In some sense, humans are the
authors of their own lives through their choices, commitments, and actions.
Yet people face in life much more than what we choose or will. Things
happen to us, and a good life depends on responding well to such
happenings and integrating what has happened into the order of our lives.
Rarely can we do so without revising our assumptions about that order.

The notion of a rational life plan is less than satisfying for a second reason:
it fails to capture the way in which many people believe themselves to have
been called to the particular shape of their lives in a manner beyond their
control. The concept of calling—a synonym of “vocation”—has roots in
traditional Christianity, in which God calls human persons to various and
distinct lives of good works, marking out their good deeds in advance for
them. In this understanding, one may be called to be a doctor, rather than
simply deciding to be one, and in accepting the call, one is constituting

oneself in the deepest way not simply as a doctor but also as a person
responsive to and responsible before God.

Interestingly, although the concept of calling has roots in Christianity, today
most US physicians, regardless of their religious affiliations, use the term to
describe their practice of medicine. Indeed, even among physicians who say
they have no religion, and among those who say they never attend religious
services, more than half agree with the statement “For me, the practice of
medicine is a calling.”¹⁴

This result should not surprise us in light of the kind of good that health is.
Like knowledge or friendship, health transcends any one person’s desires or
capacities. Health is good for all human beings, regardless of whether they
want it. Moreover, health is a good of such breadth and depth that one can
pursue it in countless different ways and explore its meaning and potential
for all time. What’s more, while it is incommensurable with all other goods,
health nevertheless serves as a necessary condition for the pursuit of all
other goods. And so, faced with such a good, even nonreligious persons
may find that this good calls out to them, inviting them to a lifetime of
service. In this sense, physicians might rightly describe their practice of
medicine as part of their calling or vocation.

Vocations shape the lives of individuals in at least two important ways.
First, vocational commitments generate new obligations. When spouses
marry, they commit to one another and to a form of life that generates new
obligations for each of them: toward one another as well as toward any
children who might result from their marriage. When a student freely makes
a vocational commitment to practice medicine rather than teaching
philosophy, that commitment requires an array of further commitments and
obligations (e.g., to complete premedical courses, take the MCAT, and
apply to medical school). A vocational commitment serves in some ways as
a promissory obligation, binding an agent voluntarily in a way that she
would not otherwise have been bound.

But vocational commitments also free agents from other obligations. A
person’s vocational commitments to his own children create obligations to
care for them that result in having lesser obligations to care for other

people’s children. A physician’s obligations to her profession and to the
persons to whom she has obligations within that profession (especially her
patients) similarly require her to dedicate her time and effort to meet the
needs of those persons, not just any person or every person. Here again,
vocational commitments are like promises that, by creating specific
obligations, free persons up from more general and unspecified demands
that might have been placed on them.

How does one discern one’s vocation? Obviously, many people are drawn
to the prospect of being a doctor. Equally obvious, however, is that among
these many are not “called” per se. How should a person think about
whether she is called to this profession or not?

In one way, the answer to this question depends on everything we say
through the rest of this book. If we correctly assess what being a doctor
means, what the practice of medicine is for, and what moral norms
healthcare professionals should abide by, a person should not commit to the
medical profession unless she can willingly and enthusiastically embrace
and internalize the Way of Medicine. More specifically, she shouldn’t
become a doctor unless she is willing to embrace the norm of never
intending to damage the health of any person. In our approach, one who
thinks of her mission as primarily to minimize suffering, even by killing if
necessary, does not understand the vocation of medicine and so cannot be
called to it in this case.

More generally, though, one can say that vocational commitments should be
guided by ability, interest, opportunity, and need. Ability is obvious. No one
can become a good surgeon without developing some requisite skills, and
some lack the capacity, realistically, to develop those skills. Moreover,
“skills” are not enough; they must be joined to dispositions that some
people will struggle to develop. A physician in training who dislikes people
is in the wrong line of work. The same is true of a pediatrician who finds
children tedious, an aspiring surgeon who recoils at the sight of blood, or
any medical student or physician motivated primarily by money. The
medical profession rightly plays gatekeeper with regard to these skills and
dispositions, rejecting many applications to medical school or residency
training. But the profession’s gatekeeping role cannot substitute entirely for

the scrutiny that an individual should give to her own deliberations about
whether she has the ability to fulfill the requirements of particular line of
work. If she does not, she has reason to believe that she is not called to that
line of work.

What about interest? Is it possible to devote one’s life to a practice or
profession in which one has little interest? Yes, clearly. Some have no
option but to do work in which they have little interest. But other things
being equal, one’s interests and passions serve as helpful guides as to what
one is called to do. Suppose an individual has gifts that make him capable
of becoming either a fine surgeon or a fine musician, and he is passionate
about music but indifferent to medicine. Then, it seems to us, despite some
obvious economic trade-offs, that a life in music might be more appropriate
for that individual. Passion, however, is not enough. In our culture we
frequently hear outrageously talented athletes or other performers say, “You
can do anything you put your mind to.” No, you cannot. That caveat
notwithstanding, human beings are not simply rational; we are also
emotional, and the basic good of integrity is enriched in our lives when
reason, choice, action, and emotion all harmonize with one another. So
attending to one’s emotions, passions, likes, and dislikes is an important
part of discerning one’s vocation.

Third comes opportunity. Recall that the order of our life is never entirely
of our own making. Rather, our lives are structured to a great extent by
what happens to us, most of which we cannot control. Similarly, the call to
be a doctor depends on many circumstances beyond one’s control. Many
people around the world would make terrific physicians but never have the
opportunity to even consider that possibility. Many others, despite ability
and interest, will never be offered a spot in a medical school. Such persons,
upon realizing that an opportunity to become a physician will not open up
for them, must acknowledge that they are not called to the work. They must
then think creatively and act energetically to discern a new course—one
that may or may not intersect with the world of medicine.

Finally there is need. As is perhaps obvious with respect to medicine, our
vocational commitments should respond to needs that we can meet. A life
of pursuing human goods is not a self-serving life but a life of self-giving.

Here again, we find helpful confirmation in the reflections of some
religious traditions. Consider, for example, this claim of the Second Vatican
Council: “It follows, then, that if human beings are the only creatures on
earth that God has wanted for their own sake, they can fully discover their
true selves only in sincere self-giving.”¹⁵ In discerning vocation, a person
must give special attention to the question of what needs he can address
through his ability, opportunity, and interest.

The domain of vocation illustrates a claim we made earlier in this chapter.
Although our natural law approach to understanding the requirements of
practical reason asserts moral absolutes, it does not assert a one-size-fits-all
picture of the moral life. Vocations are personal, requiring that an individual
discern both that to which she is called and also that which is therefore
required of her (and no longer required of her) in terms of her vocation.¹⁶
The need for such discernment highlights the importance of autonomy in
the moral life, including the moral lives of patients and physicians.

CONCLUSION

In chapter 1 we began to articulate the Way of Medicine’s understanding of
the practice of medicine. In this chapter we have supplemented that inquiry
with reflection on the broader requirements of practical reason, which arise
from recognizing basic human goods that give us reasons to act for the sake
of human flourishing. Recognizing the nature of those goods has led, in
turn, to the articulation of three requirements of practical reason: (1) basic
goods should never be intentionally damaged or destroyed, (2) we should
be fair in our distribution of benefits and burdens as regards other persons,
and (3) we should organize our lives around vocational commitments. How
does all of this bear on the clinical encounter and the doctor-patient
relationship? We now turn to that question.

CHAPTER THREE

The Doctor-Patient Relationship

Let’s return to the patients we introduced you to in chapter 1, presenting a
bit more information about their specific health concerns:

Cindy Parker goes to student health seeking a prescription for
contraceptives.

Abe Anderson asks his physician for antibiotics to treat a respiratory
infection.

Nora Garcia wonders if she should have a do-not-resuscitate order.

How should a clinician respond in each of these clinical encounters? What
norms guide good medical practice? What kind of relationship should
physicians cultivate with their patients, and for what virtues should they
strive? The above cases reflect routine encounters between patients and
their clinicians, and here in the everyday practice of medicine, we begin to
see how the Way of Medicine makes a difference for clinicians in
understanding their professional ethical obligations.

Clinicians’ approach to their obligations to patients has shifted over the past
half-century, contemporaneous with the rise and subsequent evolution of
the provider of services model (PSM). Modern bioethics emerged in part
because of physicians’ abusing their power, both by conducting unethical
research on patients and by paying insufficient regard to patients’ proper
authority to decide how medicine would be deployed on their behalf. In the
1960s and early 1970s, the patients’ rights movement contended that
traditional medicine gave physicians too much authority, making patients
unjustifiably vulnerable to their physicians’ whims.

From many quarters came critiques of what came to be called paternalism
(pater is Latin for father), a model of the doctor-patient relationship in
which the physician, like a parent, has the authority to tell the patient what
to do. The physician orders; the patient obeys. In strong paternalism, the
good physician would tell Cindy Parker whether to use birth control and
which birth control technology to use. He (prior to 1970, almost all
physicians were men) would also tell Abe Anderson what to do about his
upper respiratory infection and decide whether Nora Garcia would be
resuscitated. The physician would make all of these decisions and give the
relevant orders based on his superior knowledge of medical science and
health. Cindy, Abe, and Nora, as good patients, would obey the physician’s
orders.

This image of the doctor-patient relationship in bygone days is something
of a caricature, of course. Physicians would not stay in business long
without cultivating patients’ trust and accommodating their concerns. But
this image of strong paternalism helpfully marks one end of an ideological
spectrum regarding the doctor-patient relationship and the distribution of
authority and responsibility within it. It provides a view of what the modern
medical ethics movement reacted against: unchecked power, unexamined
professional authority, male privilege, and unjustified control over patients.

We do not defend strong paternalism. But we note that shortly after the
patients’ rights movement successfully established patient autonomy as the
driving principle of medical practice, prominent practitioners and critics
began to worry that in its retreat from paternalism, the pendulum had swung
too far,¹ toward a normative vision of the doctor-patient relationship in

which the good patient chooses and the good physician provides. We see
here the essence of the PSM.

The shift from strong physician paternalism to strong patient autonomy
depended on and contributed to the growing moral confusion regarding the
ends of medicine that Kass described in 1974.² That confusion also was
described in a seminal 1981 paper written by physician and ethicist Mark
Siegler: “Searching for Moral Certainty in Medicine: A Proposal for a New
Model of the Doctor-Patient Encounter.”³ As the title suggests, Dr. Siegler
was searching for a solid ethical foundation for clinical decisions that
doctors and patients would make, and he was doing so at a time in which all
such foundations appeared suspect. “What duties, obligations, and
responsibilities,” he asks, “does the physician incur, voluntarily and
autonomously, when he chooses to become a physician?”⁴

Siegler’s paper was cited extensively in a 1982 report by the President’s
Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research. The Commission wrote:

The role of the health care professional . . . appears to be in a “phase of
incomplete redefinition,” . . . “judgments of conscientious persons have
become divergent and perplexed” and societal consensus does not exist. No
longer are the proper ends and limits of health care commonly understood
and broadly accepted; a new concept of health care, characterized by
changing expectations and uncertain understanding between patient and
practitioner, is evolving. The need to find an appropriate balance of the
rights and responsibilities of patients and health care professionals in this
time of change has been called “the critical challenge facing medicine in the
coming decades.⁵

Almost four decades later, judgments of conscientious persons remain
divergent regarding a number of clinical practices, and societal consensus
regarding the ends of medicine remains elusive. As we noted with respect to

balancing principles, clinicians and ethicists have no way to balance
different moral claims without a shared standard regarding the purpose of
medicine. What one party (e.g., the patient) judges to be morally and
medically necessary, another party (e.g., the physician) may judge to be
illicit and unprofessional; benefits and harms depend on perspective.
Without a shared standard, then, beneficence defaults to providing what the
patient values, and nonmaleficence defaults to refraining from actions the
patient does not value. Justice defaults to requiring the clinician to
accommodate the patient’s right to choose. As a result, bioethics reduces to
a proceduralist approach in which being ethical means determining who has
the authority to make a choice and facilitating that choice insofar as
possible.

Moreover, the notion of balancing rights and responsibilities suggests that
clinicians and patients relate to one another as rivals expecting conflict. The
language of balance reflects a focus on defending the rights of one party
against those of another rather than on cultivating trust and cooperation
around a shared pursuit. In the absence of some objective standard to guide
medicine, our culture understandably situates authority with the more
vulnerable individual: the patient whose rights are threatened by the
physician’s power. The responsibility of the physician, then, is not to pursue
the patient’s health according to the physician’s best judgment. Rather, the
physician’s responsibility is to respect the patient’s right to make informed
choices regarding which healthcare services the patient will receive, as long
as the patient does not request something that breaks the law. By default
and prescription, autonomy becomes the overarching principle.

As we noted in the introduction to this book, few physicians consistently
follow the PSM. Few physicians would agree, for example, to prescribe
antibiotics just because a patient really wants them or to prescribe Adderall
for a patient who simply wants to study more effectively. In medical
practice, autonomy does not do the work that PSM theory suggests it
should. Many physicians implicitly adhere, at least partially, to the Way of
Medicine.

We return to our clinical cases to see the difference it makes to understand
medicine as the PSM does versus understanding medicine as the Way of

Medicine does—as a practice oriented toward the patient’s health as one
basic human good.

CINDY’S CHOICE

Cindy Parker is a twenty-year-old undergraduate student. She presents to
the student health clinic to see a family medicine physician. The physician
asks, “What brings you to see me today?” Cindy responds, “I just need a
prescription for birth control.”

How should the physician in this case respond? Under the PSM, the answer
is obvious: prescribe what the patient requests. Why? Because the
intervention is lawful and the patient has autonomously requested it.
Respect for Ms. Parker’s autonomy requires the physician to prescribe the
medication unless some unusual condition is present. Moreover, Ms. Parker,
like millions of other women, values contraceptives. So prescribing
contraceptives satisfies the principle of beneficence—it provides something
good for her from her perspective. In addition, contraceptives are relatively
safe; they increase the risks of some injuries to a woman’s health, such as
blood clots in patients who smoke, but such risks remain relatively small
and can be mitigated with proper education and triage. Nonmaleficence,
therefore, is satisfied. Finally, this is also a matter of justice. Women who
take contraceptives are thereby empowered to complete their educational
and vocational trajectories and to bear children at times that align with their
personal and family needs. It would be arbitrary and unjust for Ms. Parker’s
physician to refuse to prescribe contraceptives, given that physicians
prescribe all kinds of medications that are riskier and achieve goals that
patients value much less.

In contrast, the Way of Medicine urges us to ask a different set of questions.
The first question is: What do contraceptives have to do with health? In this
case, how is prescribing contraceptives consistent with the physician’s

vocational commitment to preserve and restore the health of Cindy Parker?
As we’ll see in chapter 6, the answers to these questions are not as
straightforward as physicians’ customary practices suggest. For the
moment, though, suffice it to note that the Way of Medicine suggests it
would not be arbitrary for Ms. Parker’s physician to decline to prescribe
contraceptives if, in the physician’s reasoned judgment, the contraceptives
either contradict or are beside the point with respect to the patient’s health.

ABE’S REQUEST

Abe Anderson is a fifty-year-old carpenter. He has smoked two packs of
cigarettes each day for thirty years. Mr. Anderson has a particularly
bothersome respiratory infection, with fever, fatigue, and a hacking cough
that is productive of thick yellow sputum. His wife has persuaded him to see
a physician. Mr. Anderson asks for antibiotics.

This seemingly anodyne case of routine primary care medicine exposes
inconsistencies in how physicians understand their obligations, and it opens
up critical distinctions between the Way of Medicine and the PSM. Should
Abe’s physician prescribe the requested antibiotics? If so, why? If not, how
can she justify the refusal?

To experienced clinicians it may seem obvious that the physician should
judge whether she thinks the respiratory infection is viral rather than
bacterial and, if it is viral, she should refuse to prescribe antibiotics. This
refusal would be justified because physicians are not obligated to prescribe
treatments that do not work (e.g., antibiotics for viral infections), because
the principle of justice requires considering the downstream effects of
antibiotics on future patients (namely, greater bacterial resistance to
antibiotics in the community), and because the principle of nonmaleficence
would encourage the physician to avoid the adverse side effects of the
antibiotics for Abe, including potential allergic reactions and loose stools.

In this case, it might be argued, the physician has strong medical reasons for
refusing what the patient requests.

But reality is more complicated. The risk of significant harm to Mr.
Anderson from a course of antibiotics is quite low, likely lower than the risk
of harm to Ms. Parker posed by long-term use of hormonal contraceptives.
Moreover, there is some nonzero probability that Mr. Anderson’s physician
will mistake the diagnosis, failing to see that Mr. Anderson does in fact
have a bacterial infection and would recover more quickly with antibiotic
treatment. Doesn’t Mr. Anderson have a right to accept the risks of the
antibiotics and make an informed choice about whether to take them?
Doesn’t respect for his autonomy require accommodating his choice?

Apart from the ambiguities posed by probability and uncertainty, we have
already noted that the PSM eschews any shared standard against which to
judge requirements for beneficence and nonmaleficence. Mr. Anderson
might say, “Doc, I value having the antibiotic, even if you do not think it is
likely to benefit me. I think it will be good for me, and after all, it is my
body and my health we are talking about, right?” He might note that the
remote possibility of harm caused by the antibiotics is outweighed by the
certain harm of him worrying for days that he might develop bacterial
pneumonia, not to mention the cost (another harm) of having to come back
to see the physician again if he does.

It turns out that in the PSM, even the claim of having medical reasons to
refuse Mr. Anderson’s request starts to break down in light of the fact that
the profession allows physicians to prescribe antibiotics in such cases, and
many physicians do. In the absence of a reasonable standard—say, health
objectively defined—the physician’s medical reasons appear to be arbitrary
impositions of power over the patient, unjustly curtailing the patient’s right
to make informed autonomous choices regarding his medical care.

As both Abe’s and Cindy’s cases display, invoking midlevel principles does
not lead to moral clarity without an account of what medicine is for that
might help to specify those principles. Principles can be balanced ad
nauseam, but the balancing itself appears arbitrary and determined by
power relations unless we presume that medicine is oriented toward a real
good that can be known and to which the clinician is reasonably committed.

For the Way of Medicine, Mr. Anderson’s case remains complex, but the
complexities shift. The physician begins with a commitment to the good of
Mr. Anderson’s health. Her actions are reasonable insofar as they are
conducive to Mr. Anderson’s health, and they are unreasonable insofar as
they contradict his health. This does not mean that Abe’s request has only
one ethical response. Medicine is beset by uncertainties and probabilities,
after all, and one physician might judge that antibiotics are worth
prescribing despite the low probability of benefiting Mr. Anderson’s health,
because the corollary risk of harm is so low. Another might judge that
antibiotics should be avoided despite the low risk of harm because the
likelihood of benefiting Mr. Anderson is also low.

According to the Way of Medicine, the physician has the authority to decide
which interventions to offer, based on her threshold judgment regarding
whether the interventions in question will preserve or restore the patient’s
health (and there is proportionate reason to accept their side effects; more
on that in chapter 5). A good physician will not insist that a patient follow
the one route the physician believes is best. The physician may advocate
one strategy, but she will allow the patient to choose a different course as
long as she determines that the patient-suggested course sufficiently
addresses a health-related need and does not violate other moral
requirements. Making such determinations is ultimately the work of clinical
judgment. Physicians attain clinical judgment, which in turn should be
guided by the virtue of prudence, only through a combination of experience,
reflection, and commitment to the true end of medicine.

NORA’S LIMITS

Nora Garcia is an eighty-year-old widow who in recent years has grown
frail. Mrs. Garcia comes for her usual quarterly appointment with her
geriatrician. She notes, “I feel like I don’t have long to live. I am getting
tired. I don’t want to be put on all of those machines my husband was put
on. Should I have a do-not-resuscitate order?”

What is the doctor’s role with respect to Nora? Should he encourage her to
make the decision that he believes is best or simply give her the facts? What
would characterize good counsel about limiting the use of medical
interventions that might otherwise extend Mrs. Garcia’s life?

Once again, under the PSM, Mrs. Garcia’s physician should seek to help her
make the decision that fits what Mrs. Garcia values. The physician should
ask her what she cares about and offer her strategies that align with her
values, including, perhaps, a do-not-resuscitate order.

The PSM does not encourage the physician to ask what would be a good
decision for Mrs. Garcia to make. As long as Mrs. Garcia’s choice is
permitted by current law and policy, her choosing alone makes the choice
ethical. The physician’s role is to give accurate information to help her
make an informed choice.

By contrast, in the Way of Medicine the physician encounters Mrs. Garcia
with a preestablished orientation toward her health. That does not mean that
the physician is determined to do everything possible to preserve any
measure of health. Indeed, the wise physician acknowledges that health is a
good that can be possessed only in part, and only for a time. The wise
physician also recognizes that health is not the only good the patient should
consider. The physician, then, respects Mrs. Garcia’s authority to make
judgments about the extent to which efforts to preserve her health fit her
vocation, all things considered.

Unlike under the PSM, however, a physician practicing according to the
Way of Medicine does not seek a decision that aligns with Mrs. Garcia’s
wishes. Rather, he seeks a decision that makes wise use of medicine
(including by putting some limits on medical interventions) to preserve and
restore Mrs. Garcia’s health, given her vocation and what she will consent
to. The physician takes into account the fact that Mrs. Garcia’s health is
limited, her mortality bears down on her, and other goods might be more
important to her than her health. He counsels her to make the decision that,
all things considered, he believes is best, and he respects her authority to
decline his recommendations. He might readily encourage the patient to

have a do-not-resuscitate order. He might encourage her not to. But through
it all, he remains committed to serving the health needs of his patient, Mrs.
Garcia.

SOLIDARITY AND TRUST

A particular virtue is essential for manifesting and maintaining the
commitment to serving patients’ health needs: the virtue of solidarity. The
relationship between the physician and Mrs. Garcia must be characterized
by trust and trustworthiness. In the remainder of this chapter, we address the
roles of solidarity and trust in the Way of Medicine.

Solidarity and trust are features of any flourishing community, and also of
the community formed between doctor and patient. Recall that physicians’
constitutive vocational commitment—the commitment that distinguishes
them from philosophers, priests, and dancers—is to health. But physicians
do not commit to health in the abstract or even to the health of populations;
rather, they commit to the health of their patients—that is, health as
instantiated in the particular persons to whom they attend.

Put another way, a doctor is vocationally committed to a specific kind of
community with a particular kind of common good. A common good is a
good mutually willed by participants in a cooperative, mutually giving
relationship. The common good of friends is their friendship, plus whatever
other goods they pursue together as friends. The friendship example
highlights something that applies universally: one cannot will the common
good of a community without also willing the good of the community
members. Some group members may be in it for themselves, and if so, they
frustrate the possibility of the group’s forming a genuine community.
Humans can reach their fulfillment only in community, and genuine
community, including that formed between a doctor and her patient,
requires its members to will and act for each other’s good.

Solidarity

Solidarity is the name for this stance without which there can be no
common good, no genuine community, and ultimately no human fulfillment.
Solidarity is a firm and enduring commitment to the good of other persons
and thus to the common goods of one’s communities. Solidarity is not
simply a concern for the collective, humanity in the abstract, or goods in
the abstract. It requires concrete relationships in particular communities,
including the relationships that form communities between physicians and
patients. The Way of Medicine requires physicians to show solidarity with
their individual patients—to be firmly and concretely committed to their
patients’ good.

But how can a patient have solidarity with his doctor, since the purpose of
the doctor-patient relationship is to pursue the patient’s good? Do doctors
and patients not have a rather one-sided community? The answer is simple
but important: patients should will the doctor’s good in the way that patients
can, which is to will their doctor to be a good doctor in all the relevant and
necessary ways. The patient wills this not simply so that she will be cured
(she might not be, even with the best doctoring) but also because being a
good doctor is good for the doctor; through practicing good medicine the
doctor flourishes and finds fulfillment as a person. Thus, when a patient
treats the doctor as a functionary or lies to or seeks to manipulate the doctor,
the patient fails to show solidarity. Such failures of solidarity rupture the
community of the doctor-patient relationship as much as do failures of
solidarity on the part of the physician.

Physicians can and do fail in solidarity toward their patients. Some doctors
are in medicine for themselves, regularly putting a patient’s good behind
other concerns, such as financial gain, time at the golf course, or the
demands of an insurance company. These failures are obvious, but
physicians are also prone to two less obvious failures of solidarity.

(1) Physicians can be concerned with medicine and health without being
concerned for their patients. Perhaps a physician sees health as a goal and
treats his patients as opportunities to achieve health. This detached

approach makes some methodological sense. In the surgical operating
room, efficiency and effectiveness are often served by treating the patient as
an object subject to scientific investigation and technical control. The
problem emerges when such treatment is not governed by an overarching
commitment to this patient’s good. Such patients often report that they were
treated “like an object.” Insofar as a surgeon sees a patient as a technical
problem, for example, he fails to see that patient as a person. Medical
subspecialization exacerbates this tendency, habituating physicians to focus
only on the diseased or defective parts of a patient rather than on the patient
as a whole. Patients also often report that they were treated “like a number,”
reflecting a tendency for physicians to service as many bodies as possible in
the allotted time, often in order to maximize efficiency and profit.
Physicians with each of these tendencies, while overtly pursuing health, fail
to show the solidarity physicians owe to their patients.⁶

Perhaps a physician is concerned with his professional integrity, but that
concern is detached from an orientation toward the good of the patient’s
health. The doctor may be drawn to an ascetic, unsullied lifestyle as a
physician who practices with professional integrity and purity, but his desire
to remain above the fray also leads him to detach from human concern for
his patients. This condition may seem unusual, but describing it makes the
point that a physician’s concern for his integrity can become self-centered if
that concern is divorced from the patient’s health as the end of medicine and
if it is not accompanied by the virtue of solidarity. Further, it isn’t adequate
for a physician to participate only in the community of physicians; in such
cases a doctor’s allegiance to the guild becomes primary. Allegiance to
one’s guild can be important, but such allegiance contradicts itself when it
displaces the solidarity with patients to which the guild professes and on
which the guild’s practice depends.

(2) The second failing of physicians is that which most characterizes the
PSM: being concerned for the patient’s good while denying the possibility
of knowing what that good is and what concern for it requires. Such
concern reduces to providing patients with what they desire and
autonomously choose. In such an approach, there can be no solidarity, for
no actual common good exists between the physician and the patient. In
practice, many—perhaps even most—physicians and patients break through

the constraints of the PSM to form genuine communities with one another,
but in doing so they run against and expose the inadequacies of the PSM’s
logic. Ideas have consequences: if there is no genuine good, there is no
good in common; if patients and physicians have no good in common, no
genuine solidarity and community are created between them. The logic of
the PSM undermines the doctor-patient relationship.

This portrait of the doctor-patient relationship as a community, however,
raises a different worry: that the portrait fails to respect boundaries
appropriate to the kind of relationship that physicians and patients share.
Yes, physicians are concerned for and have solidarity with their patients as
whole persons, not as objects or as collections of parts, but surely the whole
person includes much that is not the doctor’s concern and perhaps none of
the doctor’s business. Indeed, on the Way of Medicine, the physician’s
concern is the patient’s health, not the entire array of goods that have a
place in the patient’s life.

We think a middle path exists between the detached posture that treats the
patient as an object with whom the physician has no solidarity and the
enmeshed mode that, in service to being holistic, makes it the physician’s
business to care about everything that matters to the patient. Patients are
living bodily beings, and so the physician who attends to a patient’s health
—a characteristic of the body as a whole—thereby attends to the patient as
a person, even if the physician focuses only on this one dimension of the
patient’s personal existence. The same is true in other social contexts.
Teachers’ concern for their students, for example, does not typically extend
to the students’ home lives, but good teachers nonetheless are concerned for
the good of their students as persons. (Think of how odd it would be for a
teacher to simply want there to be more knowledge in the world, and to
think of students as the objects in which this knowledge was to be realized.)
The challenge for physicians and for teachers is to be concerned in the right
way.

The right way displays the hallmarks of solidarity. Think, for example,
about the importance of listening and communicating in relations between
persons. Think also of the virtues that go with listening and communicating
well: honesty, tact, patience, and silence, as well as politeness, respect, and

humility. These virtues all manifest solidarity: goodwill toward another as a
person for whom one has a special care and concern. Such solidarity also
requires acknowledging and respecting the patient’s authority. The doctor is
concerned for the whole person but not by seeking to influence all aspects
of the person’s life. Rather, respecting the patient’s authority, the physician
enables the patient to make decisions in the domain of health that fit the
patient’s vocation as a whole person.

Because the physician ultimately cares for the patient, occasionally that care
cannot be confined merely to the good of health (a parallel statement can be
made regarding teachers and the good of knowledge). Sometimes
physicians can reasonably meet a patient’s request for prayer, marital
advice, or urgent assistance in some other domain. Physicians need
prudence in discerning when such actions complement the physician’s
vocational purpose—seeking the patient’s health—and when they might
interfere with or problematically distract from that purpose. The PSM,
interestingly, has no way of distinguishing between and ordering the two
kinds of actions because it does not distinguish actions oriented toward
health from actions oriented toward other aspects of patient well-being.⁷

Trust

Classically the professions respond to particular vulnerabilities that
individuals face; such vulnerabilities call for trust on the part of the
vulnerable and trustworthiness on the part of those caring for them.
Solidarity is so important for the practice of medicine because in order for
physicians to help patients, patients and physicians must be able to trust
each other.

Patients often seemingly have no choice but to rely on their physicians.
Patients do not control when and how they come under their physicians’
care, and often they lack the knowledge or wherewithal to evaluate whether
the physician is doing a good job. But trust and reliance are different. We
rely on something when we simply count on it, and sometimes we count on

something when we have no other choice in the matter. Moreover, reliance
does not require a personal relationship: you probably rely on your car, but
you don’t trust it. You don’t feel betrayed when it conks out, although you
might feel other unpleasant emotions.

Trust, by contrast, entails having faith in someone, having confidence that
the person will act toward you in ways governed by genuine concern.
Children trust their parents once they become old enough to understand the
nature of their parents’ relationship to them. When older children merely
rely on their parents—as providers of food, clothes, and shelter—that
evidences a breakdown in the child-parent relationship. Patients certainly
rely on doctors—on their technical skills, their showing up during clinic
hours, and their billing tools. Yet doctors can prove reliable in all of these
and other respects without ever caring about their patients as persons. Such
doctors cannot be called trustworthy, as they have no genuine community
with their patients. Absence of trust undermines the doctor-patient
relationship. The practice of medicine requires a relationship of solidarity,
at least according to the Way of Medicine.

CHAPTER FOUR

Autonomy and Authority

In our effort to identify a more adequate framework for medicine, we return
to the crucial concept of autonomy. The provider of services model (PSM),
in its opposition to the overly paternalistic bioethics of the first half of the
twentieth century, has made autonomy its cornerstone concept,
overemphasizing it, we believe, to a detrimental degree. That being said, the
Way of Medicine also values autonomy, properly understood. In the present
chapter, we aim to clarify what good autonomy is and how it relates to the
practice of medicine. We also introduce another concept, authority, that is
essential to understanding the Way of Medicine.

AUTONOMY

Medical practice is shaped by the philosophies of the age. If nothing else,
the philosophies of our age emphasize the importance of individuals’
directing their own authentic self-expression and self-development. This
cultural emphasis has profoundly shaped public expectations of medicine,
making autonomy the central feature of contemporary medical ethics.
Unfortunately, medical practitioners have come to misunderstand autonomy
along the way, and medical ethicists have come to overstate its importance
greatly, leading to distortions in contemporary medicine and medical ethics.

Contemporary medical ethics came to focus on autonomy in response to
what were obviously violations of autonomy, particularly cases in which
medical researchers and practitioners withheld or subjected patients to

interventions without the patients’ consent. The Tuskegee syphilis
experiments are among the most infamous of such cases. Apart from
infamous cases, however, physicians often failed to adequately inform
patients about their conditions and the courses of action available to them.
Physicians also failed at times to obtain consent from patients before
enacting the treatment that the physician deemed best. This pattern came to
be described as medical paternalism, by which physicians assume they
know what is best for patients and presume that they have the obligation or
right to act for that presumed best. As the Tuskegee experiments show,
assuming physicians’ benevolence leaves patients unprotected when
medical researchers are more interested in societal benefits than in benefits
to individual patients. Even when physicians genuinely care about their
patients, something important is missing if the patient does not have the
opportunity to understand and at least implicitly consent to the physician-
proposed treatment.

A move toward autonomy-based medical ethics sought to correct the errors
of medical paternalism, but it also dovetailed with intellectual currents that
date back to the origins of contemporary liberalism. These intellectual
currents hold that our social and political life should recognize and foster
people’s freedom, equality, and independence. How, people reasonably
asked, are freedom and independence upheld when researchers or
physicians act on patients without their knowledge or consent? Where is the
equality between patient and doctor when the doctor can decide on a course
of action unilaterally? Drawing on classical liberal sources such as
Immanuel Kant and John Stuart Mill, twentieth-century ethicists argued that
the virtues of liberal society could be realized in medicine only through the
practice of obtaining informed consent whenever a physician or researcher
proposed to do something with, to, or on a patient.¹

Misunderstandings about Autonomy

Twentieth-century ethicists understandably emphasized informed consent,
but on the heels of this emphasis two misunderstandings regarding

autonomy have come to distort medical practice.

Misunderstanding 1: An autonomous choice is a right choice. In one view,
autonomy is singularly important because what makes a choice right is the
autonomy itself. We call this the radical autonomy view. By “radical” we do
not mean that its advocates operate outside the political mainstream;
rather, we mean that in this view the exercise of autonomy itself
fundamentally (radical means “at root”) affects the nature of the choice,
making the choice right.

The radical autonomy view has its origins in the work of Immanuel Kant,
for whom autonomy was present only in a choice made in accordance with
the categorical imperative: act only according to that maxim whereby you
can at the same time will that it should become a universal law.² A will
acting in accordance with such a maxim, argued Kant, was not determined
by any incentive such as might be provided by a mere desire; that will was,
accordingly, free and autonomous.³

More recently, the idea that an autonomous choice is an ethical choice has
become detached from the categorical imperative and transformed into
something that Kant would not recognize but that some thinkers have
dubbed “expressive individualism.”⁴ According to expressive
individualism, the rightness of a choice is a function of its authenticity,⁵ a
conceptual cousin of autonomy. One is authentic if one is one’s own person
—that is, self-governing and autonomous. A famous expression of this view
is found in Supreme Court Justice Anthony Kennedy’s decision in Planned
Parenthood v. Casey, a case involving abortion rights. Kennedy wrote, “At
the heart of liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.”⁶

In Kantian ethical theory, respect for another person’s autonomy can lead
directly to an obligation to obtain that person’s consent before engaging in
any medical intervention. But as cultural assumptions about autonomy have
drifted further from Kant, the view that respect for autonomy requires
obtaining informed consent has been supplanted by the view that we owe
positive respect to any way in which others “define [their] own concept of
existence, of meaning, of the universe, and of the mystery of human life.”

Stephen Darwall has called this sort of respect “appraisal respect.”⁷ In the
domain of medicine, the radical autonomy view expects medical
practitioners not merely to tolerate autonomous choices with which they
may disagree; increasingly, this view expects physicians to honor and
facilitate such choices.

This expectation of radical autonomy, and the underlying influence of
expressive individualism, pop up around many of medicine’s most vexing
issues. For example, in the realm of death and dying, much of our culture,
including important parts of our medical culture, has moved from requiring
physicians to respect a dying patient’s refusal of further life-sustaining
interventions to the view that the dying patient has a positive right to a
physician’s assistance in dying. Brittany Maynard put it plainly in her
online manifesto: “I want to die on my own terms. . . . My question is: Who
has the right to tell me that I don’t deserve this choice?”⁸ Following Ms.
Maynard’s view, undergirded implicitly by expressive individualism,
doctors who care for patients like her must provide death, or the means to
death, if that is what the patient autonomously chooses.

For a second example, consider the emphasis on choice that pervades
discussions of abortion, contraception, and reproductive questions more
generally. As with dying, those who invoke the importance of autonomy
increasingly claim not merely that practitioners must abstain from
interfering with patients’ choices in reproductive matters but also that
practitioners must positively respect those choices and help patients carry
them out. In this way, medical practitioners’ objections to providing
abortion or contraception are overruled in favor of what a person has
autonomously chosen.

To take up a final issue receiving attention currently, consider the growing
movement for transgender rights and equality. We hold that all human
persons are equal and equally deserving of basic human rights, whether
they are trans- or cisgendered. But many in the transgender movement also
hold that an individual’s autonomous desire to change gender should be
normative for the medical profession. In some states practitioners are
legally prohibited from counseling practices that seek to help adolescents

sustain a gender identity that matches their biological sex.⁹ Medical
practitioners are increasingly expected to support and assist those wishing
to have their secondary sex characteristics changed through medical and
surgical interventions. We discuss the medicalization of gender identity and
expression at length in chapter 6.

In these areas and others, the radical autonomy view expects patient
autonomy to set the template for what physicians and other medical
professionals may, must, and must not do. This misconstrual of autonomy
and what it requires, however, undermines the practice of medicine and
proves inherently unstable. First, the radical autonomy view reduces the
medical practitioner to a kind of functionary whose job is to provide desired
services to the patient, regardless of the practitioner’s considered judgment
about the wisdom or morality of doing so. What matters is patient choice,
the central concern of the provider of services model (PSM). This reduction
contradicts the Way of Medicine’s understanding of medicine as a
profession in which practitioners are characterized both by a commitment to
the good of health for the patient and by a practical wisdom or clinical
expertise related to that good. Under the PSM, practitioners are
distinguished not by their wisdom but by technical skills that allow them to
accomplish what few others can, and perhaps also by participation in a
social contract according to which they may exercise those skills on others
if in service to these others’ authentic wishes. Lost here is any sense of the
physician’s calling to serve persons by seeking an authentic and objective
good for them.

The radical autonomy view similarly reduces the doctor-patient
relationship. In the Way of Medicine, doctor and patient work together to
understand, pursue, and achieve what is genuinely good for the patient.
Their relationship forms a community of solidarity and trust. The doctor
serves the patient, but not in a way disjoined from her own good; indeed, in
pursuing the patient’s good, the doctor achieves her own good as a doctor.
In contrast, if the physician must be in thrall to the patient’s desires and
choices even when those choices contradict the physician’s best judgment,
the physician loses the basis for thinking that the practice of medicine
coheres with a good life, and the patient loses the basis for trusting the
physician to act only for the patient’s good.

Moreover, the radical autonomy view proves inherently unstable, for in
granting radical autonomy rights to patients, the view unjustifiably
eliminates physicians’ autonomy. Consider the physician who
conscientiously objects to participating in assisted suicide, believing that
the practice contradicts the physician’s profession to heal and never to
harm. In the face of a patient’s autonomous demand, the radical autonomy
view expects the physician to set her convictions aside or leave the medical
profession altogether.¹⁰ But how does this expectation respect the autonomy
of the physician? What warrants such an incursion on the physician’s
capacity for self-government? The radical autonomy position has no good
answer.

Misunderstanding 2: Autonomy is the greatest human good. Aside from the
claim that an autonomous choice by its nature is a correct choice, a related
but different view treats autonomy as the greatest of the human goods—the
one that is singularly important for making our lives go well. We call this
the autonomy-first view.

Those who emphasize autonomy recognize correctly that autonomy and
human flourishing are connected, but the autonomy-first view
misunderstands the connection. Unlike goods such as health, knowledge,
friendship, or religion, which in themselves make a person better off,
autonomy makes a person better off only insofar as it is directed toward
instances of these and other basic goods.¹¹ Put differently, an autonomous
choice is a good choice only when it is a choice for a good; this can be seen
whenever someone makes a self-destructive choice.

Indeed, even a choice for a good can go wrong if the choice is not guided
fully by reason. For example, a person who pursues her own health (a
genuine good) but does so in a way that disregards foreseeable downstream
effects on others (thereby failing to be fair to those others) not only makes a
bad choice but also contradicts her own good insofar as her flourishing
depends on acting with integrity.

The Importance of Autonomy

Still, autonomy is important to a good and upright life. In the most intuitive
sense, autonomy involves a person’s freedom to be self-governing. This
intuitive understanding reflects the etymology of the word: nomos is Greek
for “law,” and auto means “self.” So an autonomous person is in some way
a law unto himself, or self-governing.

But why should people care about being self-governing—deciding for
themselves how to live and act? Recall that a good life is lived in pursuit of
basic goods, individually and socially. Moreover, a good life is shaped by
concern for that life as a whole. We suggested understanding this concern in
the sense of a rational life plan, and even more adequately in the sense of
vocation: a life of pursuing basic goods for human persons to which one is
called and in which one makes good use of one’s talents, interests,
sympathies, and opportunities.

Such a life clearly requires commitments to goods as well as persons, for at
least two reasons. First, some goods—such as friendship, marriage, and
religion—are fully realized only by persons who have made commitments,
such as to a friend, a spouse, or God. Moreover, these commitments are real
only if they are a person’s own commitments, if she has really made them
for herself. This insight, central to arguments for religious liberty, brings
into view an initial reason for the importance of autonomy: some human
goods cannot be realized at all unless individuals are free to make and
follow through on their own commitments.

A flourishing life requires commitments for a second reason that bears even
on those goods that can be realized without commitment. Consider, for
example, the good of human life. Every baby participates in this good
despite not yet making any commitments. But many babies could not enjoy
this good were it not for commitments many other people make: doctors
and nurses to care for them, researchers who discover new ways of
maintaining and fostering human life under adverse circumstances, and
family members on whose love and concern the babies depend from the
outset of their existence. Commitments help human beings in community
realize goods to a greater degree, in themselves and one another.

Such commitments are often social: researchers in any field collaborate and
engage with predecessors and successors in pursuing the knowledge they
seek. They inherit a body of knowledge and skill with which to work, and
they pass new and improved knowledge and skill to future generations. The
Way of Medicine itself has built up over centuries through this kind of
collaboration.

These commitments, in turn, go better if they are the agents’ own
commitments. Imagine a world in which people are chosen to be doctors
and have little say in the matter. In such a world, doctors’ flourishing would
be stunted by their failure to do what they are called to do, and patients
would suffer insofar as their physicians fail to be intrinsically motivated for
and invested in their work.

Moreover, not everyone is cut out to be a physician, just as not everyone is
meant to be a philosopher. Judiciously discerning whether one should
commit to one line of work or the other (or both or neither) seems to require
taking honest account of one’s abilities, dispositions, and opportunities.
And who is best situated to take all of these into account if not the person
himself, the one who must eventually make the commitment? Again, we
need autonomy to deliberate practically about what commitments we should
make.

What is true in making commitments is mirrored in their upshot: the
obligations that commitments generate. Marital commitments bring marital
obligations. The commitment to practice surgery brings obligations for the
surgeon. An individual who is best situated to know to what she has
committed is likewise best situated to know what obligations follow from
that commitment. Individuals aren’t free, of course, to make up the
obligations that follow from their commitments. A married person cannot
reasonably say, “Well, for me, the marriage commitment includes openness
to other sexual partners.” A surgeon cannot reasonably say, “Well, for me, a
commitment to surgery means I get to recommend the surgery for which I
get paid the most.” Our argument does imply, however, that married persons
and surgeons both need the space to make judgments about what their
vocational commitments require. Does my marriage commitment mean
quitting the job I enjoy so that my wife can pursue the job for which she

seems particularly well suited? Does my commitment to surgery mean
operating on a patient who is dying even though the odds of success are
small? Giving people the space to engage in such discernment and to act on
their judgments seems reasonable—more reasonable than deciding for
another person what she must do.

For all of these reasons, autonomy, properly understood, contributes a great
deal to human flourishing,¹² and physicians go astray if they treat it as
unimportant.

AUTHORITY

By deploying the concept of authority, practitioners and ethicists can affirm
what is true and important about autonomy while avoiding the false
implications of the radical autonomy and autonomy-first views.

Medical decisions are made in a social space that includes multiple parties:
the patient, the patient’s family and friends, the medical professionals
involved, and others, such as institutional decision-makers, insurance
providers, and clergy. All decisions involving more than one party have a
similar problem: given that the various persons involved have different
reasons for acting, how do they reach a final decision?

John Finnis has pointed out that there are only two possible ways:
unanimity or authority.¹³ No further options are available, for unless there is
unanimity, every way of making a decision involves some form of
authority. Even a vote in which the majority wins substitutes the authority
of the majority for the decision of all.

At least two different forms of authority at work in the medical context
must be distinguished in order to respect their nature and limits. The doctor
typically has the authority of expertise. She knows what health is and what
interventions will preserve or restore health, as well as in what ways and
with what costs and side effects. She also may have the authority of

expertise with regard to what the healthiest outcome would be. Sometimes
there is clearly such an outcome, and the doctor will speak authoritatively
about that outcome to the patient.

But the authority of expertise has its limits. The physician must recognize
that the best health outcome (the one most congruent with the patient’s
medical best interests) is not always the best outcome overall and that often
no best health outcome exists anyway. This second, more limited claim
implies the first, so let’s consider it up front.

In his essay “Searching for Moral Certainty in Medicine,” Mark Siegler
writes of a professional dancer with asthma.¹⁴ When she begins to seek
treatment, the dancer first finds a doctor whose treatment plan allows her to
dance but also allows her to suffer some breathing problems, and then a
doctor who refuses to offer any treatment plan that does not maximally
alleviate her impaired breathing, which requires that she not dance. What
seems best to the first doctor—and, importantly, to the patient—is that the
dancer be able to dance, even if the treatment that secures that outcome
carries risks of impaired breathing. What seems best to the second doctor is
that the dancer be able to breathe freely, even though the side effects of
effective treatment will leave her no longer able to dance. Is one of these
doctors obviously right about the best health outcome? On the contrary: we
submit that no doctor can say for sure which outcome is the more healthy.
Each outcome preserves certain aspects of the dancer’s health while leaving
other aspects untouched or even impaired.

Moving now to the stronger claim, no doctor can say how important these
aspects of health should be relative to the other goods that the patient might
seek given her vocation. Being able to dance and being able to breathe seem
genuinely incommensurable. So do the risk of death brought on by
incompletely controlled asthma and the certainty of not being able to dance
brought on by effective asthma medications. The overall outcomes—the
health-related outcomes plus the various other benefits and burdens
incurred in pursuing those outcomes—are likewise incommensurable. No
authority of expertise can discern the best course of action for this dancer in
her particular context.

We need a second form of authority. Consider again the claim that even if
we focus just on health considerations, sometimes there is no best medical
course of action. All medical interventions offer not only benefits but also
burdens—side effects that are not chosen but that inevitably accompany the
benefits promised. Sometimes, different interventions present very different
health benefits, and to pursue one set of benefits often means forgoing the
other. In such cases, not achieving one set of benefits is a side effect of
seeking to achieve another set. Because the options are incommensurable,
the patient may not have the option of choosing a best health-related
outcome.

As the dancer’s story indicates, health outcomes are not the only ones
implicated in medical decisions: medical decisions have consequences for
other goods, basic and instrumental. One intervention might keep a patient
alive longer but also keep him from fulfilling certain responsibilities. For
example, a patient might be offered a special lung transplant that is
available only if the patient relocates across the country, away from all
family and friends. The patient must factor in such burdens in order to make
a wise choice about pursuing the intervention. More generally, an
intervention might involve procedures repugnant or immensely painful to
the patient, or the intervention might be time-consuming and expensive. In
such cases, even where a best possible health outcome seems apparent, the
patient still faces a decision about whether, all things considered, pursuing
the best health outcome makes sense given the burdens that will follow.

The question is, Who should decide and why? Our answer here plays an
important role throughout the rest of this book. The provider of services
model (PSM) of medicine, with its singular emphasis on autonomy, sees the
answer as straightforward: the patient should decide. The patient should
decide either because the right decision is de facto the decision the patient
makes (radical autonomy) or because freedom to decide is the most
important aspect of human flourishing (autonomy-first). We agree that the
patient should decide, but for different reasons. From the perspective of the
Way of Medicine, the patient should decide because the patient possesses
the authority to decide.

Let’s step back. Someone or some group must have authority to make that
decision. The decision-makers should take into account the various benefits
and burdens that follow from different courses of action, but those benefits
and burdens are often incommensurable. What standards, then, can be
brought to bear to discern a reasonable medical decision?¹⁵ One obvious
standard is the patient’s health. What can be done that offers a reasonable
hope of benefiting the patient’s health? The physician, as we suggested
above, has the authority of expertise regarding this standard, and therefore
the physician has authority with respect to what medical interventions the
physician will offer. This genuine form of authority should not be abused or
disrespected—not by the physician, who might try to extend this authority
beyond its reasonable limits, and not by the patient, who might demand
from the physician something the physician believes does not offer
reasonable hope of benefiting the patient’s health. The physician’s authority,
which derives from his vocational commitments, thus establishes an initial
framework for the choices that the patient must make.

But once courses of action that the physician believes reasonably pursue the
patient’s health are in view, what standard can be brought to bear to discern
the best overall option? This standard should be the patient’s vocation.

Think again of Siegler’s dancer. The dancer clearly has shaped and will
continue to shape her life in terms of those basic goods to which she has
made vocational commitments. She pursues her art, and the goods of
aesthetic experience and work, with devotion and craft. Perhaps, as for
many persons, these commitments are ordered and integrated by other
commitments, such as marital or religious commitments. All of these
vocational commitments provide a framework within which the dancer
reasonably considers the various burdens and benefits her physician offers,
and these burdens and benefits together determine what decisions are
reasonable for the dancer in this situation.

Note how differently thinking about one’s vocation works compared to a
bare appeal to autonomy. In the Way of Medicine, the patient can make an
apparently autonomous choice and still go wrong. She must be courageous,
not allowing unreasonable fear to sway her; she must be prudent, not
allowing unreflective desires to lead her away from a reasoned assessment;

and she must be just, taking account of her responsibilities and the way that
different choices will impact her ability to fulfill her obligations. If our
dancer has a small child, for example, it might be both unjust and imprudent
for her to pursue dance at the cost of a higher risk of dying. Alternatively, if
the risk of death is very low even with suboptimal management of her
asthma, she might be cowardly to give up her work and art for the sake of
reducing a risk that is already so small.

The patient can go wrong in assessing what her vocational commitments
require, but still she has the best epistemic access to what those
commitments are and what they imply for this medical decision. The
dancer’s personal vocation provides the necessary standard for her to
reasonably weigh the various incommensurable benefits and burdens of
each option and decide which to pursue.¹⁶ She might need advice from
someone else to help her consider her options, but even such advice serves
primarily to help her take the measure of her own vocation and its
implications for her life.

The concept of authority has another feature that autonomy lacks. It helps
medical practitioners discern how to respond when a patient chooses a
course of action that the physician believes is foolish or even unethical. As
everyone knows, authority is no guarantee of its own wise exercise, yet lack
of wisdom does not vitiate legitimate authority. Sometimes physicians have
good reasons to follow the courses of action that patients choose, even
when the physicians are convinced that their patients should have made
better choices.

In such cases a physician might reason with a patient and attempt to
persuade him that he is exercising his authority in a less than fully
reasonable way. Quill and Brody, in a critique of the PSM’s tendency to set
physicians at odds with their patients, argue that such efforts by physicians
to counsel and persuade patients, rather than violating autonomy, actually
support “enhanced autonomy.”¹⁷ Such efforts do so by giving patients more
information to consider in making their decisions. Quill and Brody’s
critique shines light on deficiencies in autonomy as popularly understood,
and we believe their critique would be expressed more adequately in terms
of patient authority. After all, if an autonomous choice is self-ratifying, a

physician has no reason to argue with or even give more information to
someone who has made an autonomous decision. By contrast, prudent
exercise of authority often requires consultation with others. Parents have
authority over their children, but to exercise that authority wisely they often
need to take account of their children’s judgments and preferences.
Similarly, patients have authority to decide which medical proposals to
follow, but to exercise that authority wisely they often need to take account
of their physicians’ recommendations as well as the input of family and
friends and even other healthcare practitioners.

Unlike in the case of autonomy, the concept of authority carries with it
limits to that authority. Everyone knows that when political authority is
exceeded, the governed have reason to resist illegitimate directives. For
example, we commend US Army physicians who have refused to
participate in waterboarding and other forms of torture. Their refusals have
been justified insofar as orders to participate in torture exceeded the
legitimate authority of the ones ordering. Note that we would not commend
the same physicians for refusing to obey an order to take care of those
prisoners’ health needs or even for refusing an order to march into danger
with other soldiers, because such orders are within the scope of the
legitimate authority of military commanders. Those in power always exceed
the scope of their legitimate authority when they pressure the governed to
do something that is always and everywhere wrong.

This point about the limits of authority proves important in the medical
context. Recall that one complaint against the PSM, with its overemphasis
on autonomy, is that it reduces doctors to functionaries who must provide
whatever a patient requests. The motto of the PSM is not simply that
patients decide (choose), but also that physicians provide (obey). In
contrast, focusing on authority makes it clear that sometimes patients will
decide, autonomously, that they want something they do not have the
authority to demand. This situation arises whenever patients demand that
physicians act in ways that contradict physicians’ professional
commitments.

According to the Way of Medicine, a doctor’s professional commitments
and expertise give her the authority to decide what she is willing to do

within the framework set by her own vocation as a healer. The patient’s
authority is limited to requesting and then consenting to or rejecting the
options made available by the doctor; it does not extend to positive
entitlements justified by autonomous choices. Thus, if a patient requests
assistance in dying from a physician who, because of moral—including
professional—objections, does not offer that option, the patient is well
within her authority to seek another physician; but she is well outside the
scope of her authority to insist that her doctor provide assistance in dying in
the face of the doctor’s principled objections.

CONCLUSION

Autonomy matters for human flourishing and to the Way of Medicine. No
doubt in the past many physicians claimed a greater scope of authority than
was warranted. “The physician decides, the patient obeys” is not an
appropriate ethos for the doctor-patient relationship. Respect for autonomy,
however, does not mean embracing the radical autonomy and autonomy-
first views that undergird the PSM. “The patient chooses, the physician
provides” likewise fails as an ethos for the doctor-patient relationship. The
Way of Medicine respects the space practitioners and patients need to
exercise autonomy, but it recognizes that they have reasonable grounds to
do so only within the scope of their proper authority.

CHAPTER FIVE

The Rule of Double Effect

In this chapter we address a final foundational issue before turning to
explore the difference the Way of Medicine makes with respect to a number
of ethically disputed clinical practices. Our purpose here is to articulate and
defend the so-called rule of double effect. This rule plays an essential role
in the Way of Medicine. Indeed, as we will show, abandoning the rule of
double effect leads directly toward the provider of services model (PSM).

Our framework is robustly pluralistic about basic goods and about the
diverse ways that good lives can pursue these many goods. We have argued,
however, that some actions are never permissible for anyone. Moral
absolutes typically flow from the general norm: basic goods are never to be
directly (that is, intentionally) damaged or destroyed, whether out of
hostility or for the sake of some further good. That norm makes sense,
recall, because the basic goods are always good; therefore, hostility toward
them is always unreasonable. Basic goods are also incommensurable; it can
never be reasonable to destroy one good as a means to achieve a greater
good.

The Way of Medicine internalizes this requirement of practical reason,
particularly in its understanding of the physician’s central vocational norm:
never directly (that is, intentionally—as end or means) damage or destroy a
patient’s health and life. This norm starkly distinguishes the Way of
Medicine from the PSM, and it has obvious implications where issues such
as abortion and euthanasia are concerned, as we discuss in later chapters.
But the norm also raises a question: why are moral absolutes, including
those of the Way of Medicine, framed in terms of intention?

To explore this question, consider the options that patients typically face:
one set of health benefits is linked to one set of health burdens, and another
set of health benefits is linked to a different set of health burdens. The
options exclude one another. For example, a patient who chooses
chemotherapy may have prospects of longer life but will also face
significant burdens, including nausea, fatigue, mouth sores, and anemia, all
of which diminish the patient’s health. Similarly, a patient who declines
chemotherapy can expect to avoid these burdens but faces the prospect of
dying sooner, a result obviously contrary to the good of life and health.
Patients typically cannot avoid making choices that have negative
consequences for their health. Insofar as that is true, medicine’s chief norm
cannot be that physicians must avoid anything that causes damage or
destruction to the patient’s health. In many situations, physicians cannot
possibly comply with such a norm.

Note, however, that in the situation just described, the patient’s relationship
to the benefits sought or the burdens avoided differs from the patient’s
relationship to the benefits lost or burdens accepted. A patient who chooses
chemotherapy selects a set of health-related benefits and accepts a set of
health-related burdens as side effects. Such choices clearly differ from
intentionally choosing to damage one’s health or choosing to die.

Although a patient cannot always avoid choices that will result in damage
to her health, she can, always and everywhere, avoid choosing to damage or
destroy her health. She can avoid the latter choices even if in no other way
than by simply doing nothing. For even if she suffers injury to her health by
doing nothing, the injury is, again, a side effect of her (in)action. Thus,
moral absolutes speak to what one must never do intentionally. This focus
on intention is important to just warfare—where injury to civilians may be
accepted under some circumstances, but never intended. It is also important
to the risking of one’s life in pursuit of good ends—for example, in fighting
forest fires or seeking to rescue someone drowning, and, of course, to the
practice of medicine, which inescapably involves accepting the adverse side
effects of treatments. Thus, the norm is formulated: never intend damage or
destruction to a basic good.

ASSESSING SIDE EFFECTS

The rule of double effect can be put quite simply: sometimes an effect that
one should never intend can be accepted as a side effect as long as there are
proportionate reasons for doing so. (More traditional formulations of the
rule are more complex; we address them below when discussing intention.)

What is proportionate is one of the most important practical questions in
medicine. The answer provides the standard by which to judge many of the
most difficult questions physicians and patients face: whether to withdraw
or remove treatment when death is not intended but will follow as a
consequence, when the death of an unborn child can be accepted as a
consequence of actions taken to preserve the mother’s life, and many more.
Here we provide two general answers to the question about proportionate
reason, and we amplify those answers in context in subsequent chapters.

Before saying what a proportionate reason is, however, we should say what
it is not. It is not a reason that follows from weighing different goods to find
if the “greatest good” will be achieved as a result of the proposed action. If
it were possible to take the goods and harms of a proposed clinical
intervention and identify which proportion will bring about the greatest
good, consequentialism would seem to be a reasonable response. We would
want to maximize goods. But if, as we argue, such maximization is not
possible, “proportionate reason” cannot refer simply to the balance of good
over bad in an option.

Rather, proportionate reason must be understood by considering the goods
and harms of an option against a reasonable standard. Two standards are of
special importance: fairness and vocation.¹

Fairness

Recall that emotions and preferences, if not integrated by reason, can distort
our choices and blind us to the fact that the basic goods are good for all
human beings. Thus, a student might lie on his medical school application,
knowing that by doing so he is improving his chances of being selected
while hurting the chances of other, more highly qualified, applicants. He
might think, “I do not know those other applicants, and anyway I need to
look out for me.” Such thinking, like his act of lying, is manifestly unfair, as
the Golden Rule suggests. If six months later we told the student that he did
not get into the school of his choice because another student lied on her
application, this student would resent the other student’s lie.

In this example the effect of one student’s lie on another applicant is a side
effect. The student does not lie in order to hurt the other’s chances of
admission. He lies in order to gain admission for himself. He probably
recognizes that his action will disadvantage someone else, but that is not his
purpose. What makes his action recognizably unfair is that he seeks benefits
to which there are burdens attached, and he knowingly takes the benefits
entirely for himself while unjustifiably allowing the burdens to fall entirely
on someone else. This unfairness is a separate wrong from the wrong of
lying.

Similarly, in the case of the Tuskegee experiments, in all likelihood the
researchers did not intend the negative effects caused by not treating the
subjects in their study. Indeed, they may have rationalized their actions by
insisting that, unlike the researchers running some Nazi experiments, they
did not directly make their subjects sick. Nevertheless, we can see, and the
researchers should have seen, that in not treating their subjects, the
researchers sought the benefits of their scientific research and medical
knowledge for themselves and others while allowing the attached burdens
of the research—sickness and death—to fall entirely on those subjects. The
Tuskegee study was therefore manifestly unfair.

Principlists would say that the Tuskegee experiments were failures of
justice. Indeed they were, precisely because they were unfair. In general,
when principlists and others have drawn attention to abuses of vulnerable
populations as subjects of human research, they have pointed out that it is
manifestly unfair (and therefore unjust) to take advantage of such

populations in order to pursue benefits that those subjects likely will never
see while imposing burdens that the eventual beneficiaries will never
experience.

Fairness thus provides one standard for judging whether there is a
proportionate reason to accept negative side effects. The benefits of an
action might be quite significant and the burdens relatively minor, but the
action may still fail the test of proportionality precisely because the benefits
are distributed to one person or group and the burdens to another. Such an
action is unfair unless the person or group receiving all or most of the
burdens consents to do so, perhaps out of charity for others whom they wish
to benefit, as we see in the case of living organ donors.

As the Tuskegee case illustrates, the standard of fairness in accepting side
effects is especially important for the ethical conduct of human subjects
research. (Although this book does not focus on it, the norms of the Way of
Medicine clearly bear on human subjects research.) Fairness is important
for the ethical practice of clinical medicine as well. Physicians can unfairly
benefit some patients at the expense of others, can unfairly seek resources
for their patients at the expense of their colleagues’ patients, or can unfairly
privilege their own good over their patients’ good. Physicians who
begrudge the time they give to a patient because of prejudice, distaste, or
dislike for the patient are being unfair, even if they intend no harm.

Fairness does not prohibit physicians from privileging their patients in
certain ways. Physicians’ commitments to their patients release them from
some obligations toward others. In attending to their particular patients,
physicians do not attend to those who are not their patients. Indeed, medical
practitioners could genuinely care for patients only by privileging their
patients in this way. Therefore, this kind of privileging seems to meet the
standard of fairness even if, at a given moment, someone is being
disadvantaged by it—for example, when a physician sees regularly
scheduled patients before patients who arrive without appointments. This
kind of privileging seems consistent with the Golden Rule.

Vocation

As we have seen, individuals have good reasons to bring order into their
lives by making commitments that orient them toward some goods rather
than others. Because human goods are typically sought and obtained in
cooperation with other persons, an individual must make commitments to
particular persons. Because the goods cannot be sought all at once or all in
the same measure, the individual must give priority to some commitments
over others.²

The individual’s vocation names the overall shape of his life—the order
brought about by his most important commitments. As we have seen,
vocations also generate obligations that require further action. So, for
example, a person whose vocation includes a marriage commitment will
typically eventually have children, and when that happens his vocational
obligations expand to encompass care and concern not just for his spouse
but for his children also.

We have made use of this account of vocation to argue for patient authority
in healthcare decision-making. Patients have the authority to accept or
refuse proposed interventions because they are in the best position to judge
whether the benefits and burdens being offered to them are proportionate
for them in light of their particular vocational commitments. The patient’s
vocation provides the standard against which proportionality is judged.

We can see how vocation bears as much on our assessment of side effects as
it does on our assessment of what is chosen. Patients make healthcare
decisions with benefits and burdens in view, and typically the consequences
of their decisions ramify beyond the scope of health. On the one hand, a
patient may choose an intervention in hopes of staying alive to spend more
time with his family, but as a consequence of the intervention he may
experience discomfort, insomnia, and irritability that make it hard for him
to be present to his family, do his work, or pray. On the other hand, the
patient may choose to decline treatment to avoid the associated burdens,
knowing that, as a consequence, he is likely to cut short the time he has to
be with his family or engage in other worthy activities. Either decision
results in a range of negative side effects, and the patient must judge

whether the negative effects to be accepted are proportionate to the goods to
be pursued. Vocation provides the standard for that judgment.

DETERMINING WHAT IS INTENDED AND WHAT IS A SIDE EFFECT

Now we return to an overarching question: on what grounds do we
discriminate between what is intended and what is merely a side effect?

All action aims at some good. More precisely, all action aims at some state
of affairs in which one expects to realize a good. Consider the request for
antibiotics by Abe, whom we met in chapter 3. He did not wish merely to
possess antibiotics, nor even merely to ingest them. He aimed at a state of
affairs in which, the antibiotics having done their work, his health would be
restored. So we may say that Abe had a goal or end in mind, and that he
hoped to realize the basic good of health in achieving that goal.

To reach this end, of course, Abe had to avail himself of means to that end.
He needed a plan, as is true of most of our pursuits of ends. Abe wanted to
be healthy; in order to achieve that, he aimed first to take antibiotics; in
order to take antibiotics, he first had to obtain a prescription; in order to
obtain a prescription, he first had to see a physician; and so on. Put
differently, Abe saw a physician in order to receive a prescription, in order
to obtain antibiotics, in order to ingest the antibiotics, in order to restore his
health. In thinking about Abe and each step in this series of actions, we
could describe his thinking and his choosing in terms of his plan or proposal
for action.

Abe might have considered other proposals; indeed, his physician
encouraged him to do so. In the physician’s judgment, antibiotics were not a
sound means toward health; rest and a tincture of time would be more
conducive to health. But at the end of the day, Abe made a choice, adopting
one proposal rather than another. The proposal included the end sought—in
his case, that state of affairs in which his respiratory infection was healed—

and the means to be pursued toward that end. All of this made up Abe’s
proposal for action, and so all of it was part of Abe’s intention.

In contrast, whatever was not part of this proposal—not, that is, either the
end Abe sought or the means he chose to achieve that end—can be
described as a side effect; it was not part of Abe’s intention. Perhaps Abe
knew that antibiotics typically upset his stomach and gave him diarrhea. He
was not terribly happy about that fact, but he went about seeking and taking
the antibiotics anyway. He foresaw that he would feel queasy and have
diarrhea for several days, but neither of these consequences was part of his
proposal; neither was intended. Although foreseen (more on that below), an
upset stomach and diarrhea were neither his goals nor the means he chose to
achieve his goal. Falling outside the scope of his proposal, these bad
consequences were side effects only.

Even though they were side effects, Abe still bore responsibility for them.
He could have chosen a different plan, such as the one his physician
recommended, and avoided these side effects altogether. Insofar as Abe was
able to choose between different proposals for action, he was responsible
for what he accepted as side effects. This is why it was necessary to identify
standards—fairness and vocation—by which Abe and others could judge
whether there was a proportionate reason for him to accept a particular set
of side effects in a particular situation. If we supposed that Abe would in
fact benefit from antibiotics and that the digestive issues would not
seriously incapacitate him, from the point of vocation, taking antibiotics
seems reasonable. But insofar as Abe’s expectation of benefit decreased
(e.g., as his physician explained that his infection was probably caused by a
virus), and his expectation of burdens increased (e.g., if he learned that he
was prone to more problematic forms of antibiotics-associated diarrhea),
Abe’s reasons for accepting these side effects diminished. If they
diminished enough, Abe should not have chosen to take antibiotics, even if
his doctor was willing to prescribe them. In addition, the doctor in this case
had her own decisions to make and her own judgments about
proportionality. The doctor had to judge whether the health benefits to be
obtained by writing the prescription were proportionate to the side effects of
doing so, and she had to consider whether it was unfair to other patients to

contribute to antibiotic resistance in the community while pursuing only
minor expected benefits for her patient.

Let’s return to the question of what Abe intended and a matter of some
controversy among philosophers of human action. We have claimed that
Abe’s intention encompassed all that was included in his proposal or plan—
his end as well as all the means he adopted to bring about that end.³ This
claim is controversial insofar as it identifies what was intended from the
agent’s perspective or point of view. What did Abe seek to obtain, and what
means did he choose to bring that about? Abe could choose only by his own
lights, but many thinkers, who agree about the importance of intention and
the rule of double effect, think that the agent’s perspective is too subjective.
Motivated in part by some hard cases, they are inclined to argue that one
must take a more objective view and that, in some cases, doing so will lead
to different conclusions about what Abe chose and whether he chose rightly.

What hard cases do they have in mind, and how do those cases bear on how
we think about intention? The body of writing about intention is enormous,
but here we focus on a case famously presented by philosopher Philippa
Foot. Foot described a case involving cave explorers trapped by a landslide
that had left one of their number blocking the only way out of the cave.
Water in the cave was rising fast, and the only way to move the man and the
rocks that were pinning him was to use a single stick of dynamite to blow
open a hole through which the explorers could escape—all the explorers
except, of course, the one who was stuck, whom the explosion would kill.

Would it be homicide to blow open the hole? Would those who blew open
the hole necessarily intend the man’s death? By our account, as described
above, it does not seem that the explorers’ proposal included the man’s
death. Their end was to save their lives. The means they chose included
blowing open a hole in order to escape. On our account of their intention,
the explorers would not be guilty of intentionally killing the man stuck in
the hole. (Whether it would be permissible to accept his death as a side
effect is a separate question, which would clearly require a consideration of
fairness and vocation.⁴)

But many find this conclusion appalling. Surely one cannot blow a hole
open by setting off a stick of dynamite right next to a living human being
and not intend that person’s death! The action of setting off the dynamite
and causing the death of the trapped explorer seems, as philosophers say,
“too close.” Thus, on some theorists’ account, if the bad effect is too close
to the action, it should be considered part of what is intended, even if the
bad effect is not part of the agents’ proposal. The challenge in such
accounts is not only to distinguish that which is part of a person’s proposal
from that which is not, but also to discern whether bad effects are
sufficiently close to the action to be considered part of what is intended,
thus making the action unreasonable.

One of the authors of this book has addressed the problem of closeness at
great length elsewhere,⁵ and we do not propose to wade further into that
topic here. But we mention these different accounts of intention here
because they return in chapter 7 when we discuss some disputed questions
related to the beginning of life.

ARTICULATING THE RULE OF DOUBLE EFFECT

We are now in a position to compare our formulation of the rule of double
effect with the more common and somewhat more complicated
formulations.

Above we presented the rule as follows: sometimes an effect that one
should never intend can be accepted as a side effect as long as there are
proportionate reasons for doing so. This formulation is relatively simple,
and it leads to a relatively simple way of applying the rule: only intend (i.e.,
will or choose) the good, and only accept the bad side effects of an action
when there are proportionate reasons for doing so (with proportionality
judged against the standards of fairness and vocation).

A more traditional formulation of the rule is somewhat more complicated.
According to that formulation, one may accept the bad effects of an action

if the following four conditions are met:

1. The act is good in itself (sometimes stated as the act is not intrinsically
wrong).

2. The bad effect is not intended.

3. The good effect is not achieved by means of the bad effect.

4. There is proportionate reason for accepting the bad effect.⁶

We prefer our simpler formulation, because we believe it encompasses
these four conditions. Only intend the good encompasses conditions 1
through 3. An action that intends only the good is good in itself. Because,
on our account, one’s intention includes both the end one seeks and the
means one chooses to bring about that end, conditions 2 and 3 are
redundant and can be stated simply as never intend the bad (the logical
corollary of only intend the good). Finally, our formulation includes the
requirement of proportionality (condition 4).

RECOGNIZING THE CLINICAL IMPORTANCE OF THE RULE OF
DOUBLE EFFECT

We conclude this chapter by pointing to the pervasive role that the rule of
double effect plays in medicine and medical ethics. Physicians lean on the

rule of double effect in their everyday reasoning about whether the adverse
side effects (the language physicians have long used) of a treatment should
be accepted in light of the benefits that the treatment promises. Physicians
cannot possibly honor the ancient medical commitment to do no harm
except by either doing nothing, and so failing to be physicians, or by
deploying the rule of double effect—intending only the good to be brought
about by an intervention and accepting the bad side effects only when there
is proportionate reason to do so. Physicians thus tacitly deploy the rule of
double effect whether or not they explicitly embrace it or the Way of
Medicine. Therefore, we might say that those who critique the rule of
double effect find themselves critiquing their own everyday clinical
practices.

The rule plays a more visible and equally foundational role when we turn
from every-day, uncontroversial practices to ethically controversial
interventions. Without the rule, one cannot, in many cases, respect all
persons by not violating their goods—goods that moral absolutes protect—
and still act to preserve and restore the health of one’s patients. Application
of the rule of double effect is essential, for example, in showing how an
intervention to save the life of a pregnant woman need not violate the norm
against intentional killing, even when the intervention will result in the
death of an unborn human person. The rule is equally essential for
understanding the difference between the practices of withholding or
withdrawing medical treatment and the practices of assisted suicide and
euthanasia.

Finally, the rule of double effect plays a critical role in the question of
cooperation, a central question wherever physicians are pressured to act
against their conscience. Medical practitioners cooperate in unethical
practices whenever they do something that makes it easier for another
person to do something bad. For example, suppose a patient asks for a
referral to an unscrupulous pain physician because the patient intends to get
opioid medications in order to abuse them. If the practitioner intends to
make the bad action easier to take—that is, makes the referral so that the
patient will be able to abuse opioid medications—the practitioner formally
cooperates, and formal cooperation is always unethical; it is always wrong
to intend what is bad. But if the practitioner does not intend to make the bad

action easier, the physician only materially cooperates, and the question
then becomes, Is there a proportionate reason to accept the unintended bad
as a side effect? So put, the question of cooperation clearly requires
application of the rule of double effect.

CONCLUSION

The rule of double effect plays a pervasive and foundational role in the Way
of Medicine. The rule undergirds physicians’ routine practices of assessing
side effects, and it protects them from violating the moral commitments that
have guided physicians for centuries in the Way of Medicine. Therefore, we
encourage the reader to be wary of those who dismiss the rule because it
was first articulated formally in a religious community (Roman Catholic, to
be precise) or because intentions are often hard to judge from the vantage
point of a third party (they are indeed sometimes hard to judge, but that
does not make intentions less important) or because the rule seems to limit
the scope of a patient’s right to self-determination (it does, which is why
medicine requires the concept of authority).⁷ The profession of medicine
detaches from the rule of double effect to its peril.

CHAPTER SIX

Sexuality and Reproduction

The clinical terrain involving sexuality and reproduction includes an
expansive array of ethically controversial topics. With respect to sexuality,
these topics range from gender and sex transition to sexual performance to
the prevention of pregnancy. With respect to reproduction, they range from
genetic counseling and assisted reproductive technologies prior to
pregnancy to prenatal genetic diagnosis and abortion during pregnancy to
resuscitation of neonates and surgical sterilization after pregnancy.

In no other domain do the provider of services model (PSM) and the Way of
Medicine diverge more starkly. According to the Way of Medicine, the
constitutive end or purpose of medicine is the patient’s health. No one
should intentionally damage or destroy basic goods, and health and other
goods should be pursued by physicians only in ways that are fair to others
and that respect one’s vocational commitments. The domain of sexuality
and reproduction gives a clear picture of what the practice of medicine
looks like when it abandons these principles in favor of elevating patient
autonomy, choice, and subjective well-being.

To organize our approach to this domain, in this chapter we follow two of
our previous cases and add another in order to focus on three prominent
topics: contraception, assisted reproduction, and gender and sex transition.
In chapter 7 we turn to the issue of abortion.

Before going further, we note a looming difficulty. Clinical ethical
controversies regarding sexuality and reproduction disproportionately focus
on and have consequences for women. Moreover, the approach we advance,
in which medicine is oriented to health as one among several basic human

goods, leads to conclusions that many will see as contradicting women’s
“reproductive rights and freedoms” and women’s well-being more broadly
conceived. If that were not enough, both of us are men, a fact that to some
readers makes us unqualified to address questions that bear more heavily on
women. For all of these reasons, we proceed with caution, but we proceed
nonetheless.

THE PILL AND THE NEW MEDICINE

Whether the advent and subsequent dissemination of contraceptives should
be celebrated or lamented (a topic we address below), “the pill” profoundly
altered what patients expect of physicians and what physicians expect of
themselves. We noted earlier that as biomedical science has expanded, it
has made possible many uses of medical technology that are not obviously
directed toward preserving and restoring health. The paradigmatic example
of such interventions, and perhaps the most consequential for medical
ethics, is the contraceptive.

In 1979, roughly twenty years after the US Food and Drug Administration
(FDA) approved the first oral contraceptive,¹ Mark Siegler and Anne
Dudley Goldblatt wrote,

The oral contraceptive medication was the first prescription drug that was
(and is) in effect, a self-prescribed “treatment.” Patients—i.e., medical
consumers desiring elective medication—demanded that physicians
prescribe the contraceptive pill. Other popularly self-prescribed medications
soon followed . . . [and] came to be seen as appropriate solutions or
treatments for problems previously considered individual or social
concerns, but in any case not biological abnormalities or specific diseases.²

Siegler and Goldblatt, neither of whom had any moral objections to
contraceptives as such, nevertheless worried that the widespread
prescription of contraceptives by physicians established a problematic
pattern in which patients pursue and receive interventions that have
biological and physiological consequences—and so are sought from
physicians who are licensed under US law to “provide” such interventions
—and yet are not clearly required by physicians’ traditional orientation to
the health of their patients. They worried that this widespread pattern was
leading to the phenomenon of the “demanding patient” and was teaching
patients and physicians alike to think of the physician as a mere provider of
healthcare resources.

Public perceptions and expectations regarding physicians have continued to
shift in the directions Siegler and Goldblatt worried they would. As we
discuss below, prescribing contraceptives is not obviously congruent with
an orientation to the patient’s health, yet prescribing contraceptives has
come to be seen as obviously part of a physician’s task. To support this
shift, health, objectively defined, has steadily been displaced by a much
more expansive notion of women’s health (a version of well-being) that
includes sexual and reproductive autonomy and reliable family planning.
This shift leads physicians to detach from practicing medicine under the
Way of Medicine’s orientation to their patients’ health in favor of
“providing healthcare services” according to the wishes of their patients. In
the former, the physicians’ judgment is essential. In the latter, that judgment
is either irrelevant or an impediment to their patients’ achieving well-being.

There is a logical progression to these shifts:

1. People desire a state of affairs (e.g., temporary sterility) that doctors can
bring about.

2. The desired state of affairs is not obviously related to health.

3. The aims of medicine, therefore, are broadened, either by adding to
health other aims (e.g., reproductive autonomy) or by expanding the
definition of health (e.g., to well-being) so that it includes these additional
aims.

4. Physicians cannot, as a result, have the authority that comes with
expertise regarding the aims of medicine since they have no authority of
expertise regarding this expanded set of concerns (e.g., whether and when
women should be open to pregnancy).

5. Physicians should be nondirective in their counsel to patients, giving
accurate information but letting patients decide how and when their
physicians will cooperate to bring about the states of affairs that the patients
desire (whether sterility, pregnancy, or something else altogether).

These shifts in public and professional understandings put pressure on
physicians to either go along or leave the profession, and they underpin the
swing of the pendulum from paternalistic medicine to the patient-as-client
model undergirding the PSM. The pendulum received a decisive push when
family planning was incorporated into the domain of medicine.

CONTRACEPTIVES IN THE CLINICAL SETTING

Cindy Parker, the twenty-year-old undergraduate student we met in chapter
1, presents to the student health clinic to see a physician. The physician
asks, “What brings you to see me today?” She responds, “I just need a
prescription for birth control.”

In the context of the PSM, it is hard to see anything ethically interesting
about this interaction. Ms. Parker requests contraceptives, as the great
majority of American women do at some point in their lives. Indeed,
prescribing contraceptives is one of the most common and routine practices
of obstetrician-gynecologists, family physicians, and others who care for
women of child-bearing age.

The Provider of Services Model

According to the PSM, prescribing the pill to Ms. Parker is uncontroversial,
if not ethically obligatory. First, contraceptives meet the criteria of being
legal, technically feasible, and readily available in the present context. The
physician needs only to write a few words on a prescription pad, something
that physicians are eminently competent and qualified to do. Meeting these
criteria implies that the intervention (contraception) is among those options
that a physician must offer to a patient in order to duly respect the patient’s
autonomy. The physician might ask Ms. Parker questions and share
information with her about the actions and side effects of different
contraceptives in order to make sure her request is free and informed, but
after doing so the physician must honor Ms. Parker’s choice.

Notably, in the principlist framework favored by the PSM, the principle of
beneficence also moves the physician to prescribe the contraceptive, insofar
as only Ms. Parker is in a position to decide what is good for her—that is,
whether a contraceptive will contribute to her well-being or not. Only she is
in a position to consider the various states of affairs that she values, such as
finishing her degree and advancing in her career, as well as enjoying sexual
intimacy when that seems right to her. She may hope to have children one
day, but pregnancy now would substantially disrupt her life plan.
Contraceptive technology allows her to pursue her goals without the fear of
becoming pregnant.

To this basic structure of reasoning, PSM proponents may add other
considerations. They may note that contraceptives are relatively safe.

Although the PSM is often willing to set aside the health of the patient in
order to achieve other patient goals, to date most ethicists have supported
physicians who declined to provide interventions that threaten imminent
substantial bodily harm to the patient (some exceptions are addressed
below). So, for example, surgeons are supported in refusing operations that
will cause significant harm and have little prospect of restoring health.
Contraceptives, by contrast, do not seem to reach that threshold.
Contraception-associated risks of major harms such as blood clots and
stroke remain small. Moreover, pregnancy brings its own health-related
risks, so that a harms-reduction model appears to support using
contraceptives to minimize bad health outcomes downstream.

Then there is the question of justice. Access to effective contraception has
made it possible for millions of women like Ms. Parker to pursue vocational
pathways that early motherhood might foreclose. As such, many would
argue that Ms. Parker has a justice claim that the physician must respect.

Ultimately, only Ms. Parker is in a position to weigh all of the desired and
undesired consequences of using or not using contraceptives in order to
make an informed choice about whether a contraceptive is right for her. In
light of all this, it seems obvious under the PSM that the physician should
prescribe what Ms. Parker requests.

The Way of Medicine

On the Way of Medicine, this same case becomes problematic. Our
framework starts not with the question of whether prescribing
contraceptives is legal, feasible, and available but instead with the question
of whether prescribing a contraceptive is congruent with the physician’s
commitment to her patient’s health. The answer to that question is not
obvious in this most common of cases, insofar as being capable of
pregnancy is a sign of health for a woman of Ms. Parker’s age. Prescribing
a contraceptive thus fits awkwardly with a commitment to health, if it does
not indeed contradict that commitment.

We can imagine cases in which our framework might straightforwardly
affirm the prescription of drugs that in most cases are used as
contraceptives. For example, hormonal contraceptives are often prescribed
to treat medical conditions such as endometriosis or bleeding fibroids, or
even to restore healthy menstrual patterns. In such cases, the physician who
prescribes the drug seems to do so for the patient’s health. Temporary
sterility is foreseen as a side effect in such cases, but it need not be and
often is not intended, and there is often a proportionate reason to accept the
side effect.

In the usual case, however, as in Ms. Parker’s, physicians prescribe
contraceptives not to preserve and restore health but rather to make the
patient temporarily sterile. That action not only departs from the physician’s
commitment to patient health but also seems to contradict that commitment.
Pregnancy is a sign of health for a young woman who engages regularly in
sexual intercourse. Indeed, if Ms. Parker were to tell her physician that over
the previous three years, she and her boyfriend have had sex regularly
without using condoms or other contraceptives, the physician then would
have good reason to think that something is wrong with the health of Ms.
Parker or her boyfriend. So when a physician directly diminishes a patient’s
fertility—by prescribing a contraceptive or conducting a sterilization
procedure—she thereby directly diminishes her patient’s health.

Does this argument define health too narrowly? Contraceptives may
diminish one dimension of health, but what about the proper working of the
organism as a whole? How can the health of Ms. Parker on a contraceptive
be considered deficient relative to the health she would have if she were
thirty-six weeks pregnant, with swollen legs, elevated heart rate, and a
reduced capacity for exercise? Moreover, what about those risks of injuries
to health that pregnancy brings: bleeding, infections, a ruptured uterus, even
death? These questions have force, particularly when a woman has a
condition, such as a congenital heart defect, that puts her at markedly
elevated risk of harms to health during pregnancy. Within the framework
we propose, it is along such lines—orientation to a patient’s health—that a
physician should ask himself whether prescribing a contraceptive in a
particular case coheres with or contradicts his profession.

In this respect, the case of being called on to prescribe a contraceptive
might seem similar to other instances in which a physician seems to engage
negatively with one dimension of a patient’s health for the sake of others.
Thus, amputation of a limb removes a part of the organism for the sake of
the whole; surgery involves cutting into healthy tissue to get at the
unhealthy. Is the provision of a contraceptive similar to either of these
instances?

We think not. Effecting temporary sterility is at least a suppression of a
patient’s healthy functioning in a way that removal of a gangrenous limb is
not. Once a limb or organ is gangrenous, there is no state of health available
to the organism except one in which the diseased part is removed. That new
state—without the diseased part—is clearly a state of improved health
relative to the state in which the diseased part remains intact. A parallel
situation occurs when a dying patient is suffering terminal agitated
delirium; then “cutting off” the diseased state of consciousness using
sedatives may restore the only measure of health available to a person in
that condition—one clearly reduced relative to a healthy organism but
improved relative to that particular state of agitated delirium. We discuss
this further in chapter 9. Intentionally causing temporary sterility in a case
like Ms. Parker’s differs from these cases. Fertility is not like gangrene or
delirium; rather, causing temporary sterility in this case seems to involve
reducing the health of the whole for the sake of preserving some dimension
of health, or at least being hostile toward one dimension of health (that
dimension which makes reproduction possible) for the sake of other
dimensions.

Contracepting also differs from accepting the incidental damage to health
that inevitably occurs as a side effect of medical interventions. In
Hippocrates’ Oath and Asclepius’ Snake, Thomas Cavanaugh notes that
these “wounds of treatment” inevitably accompany all medical efforts to
restore order to a dis-ordered body, but the wounds are not intended.
Indeed, medical progress is measured in part by mitigating the wounds that
accompany medical interventions. In the case of contraception, however,
the physician intentionally suppresses healthy function as a means to some
other goal—even a health-related goal. Doing so seems to contradict the
physician’s professed and fundamental orientation to health and thus to be

an instance of what Cavanaugh calls “role-conflation” harm—harm that is
intended by the physician contrary to the demands of her profession.³

To summarize, prescribing contraceptives, at least in Ms. Parker’s
representative case, contradicts the physician’s commitment to the patient’s
health; contracepting is not, to put the point more strongly, medicine at all,
even if it has many of the trappings of medicine.

This verdict of the Way of Medicine is supported by reflection on the
requirements of practical reason. Practical reason converges with the Way
of Medicine in an argument against contraception that turns on the way that
using a contraceptive seems sometimes to involve hostility toward the child
who might otherwise come into existence as the fulfillment of sexual
intercourse. We argued in chapter 5 that one intends what one adopts in
one’s proposal for action, encompassing both the end one is pursuing and
the means one chooses to bring about that end. In contraception, one
anticipates an action—engaging in sexual intercourse—that could result in a
child as a consequence, and one wishes to prevent that consequence. So one
chooses a contraceptive as the means to prevent a child’s coming into
existence. This action seems contrary to the good of human life.

Some thinkers have gone as far as to argue that the choice to contracept is
structurally similar to the choice to abort. Contraception and abortion are
not the same wrongs, for there is no actual child in the case of
contraception, but a culture in which the great majority of people
intentionally prevent the existence of innumerable possible children would
not surprisingly extend its efforts to prevent children from being born by
also supporting the practice of abortion. Indeed, if children are expected to
follow from sexual intercourse only when their existence is wanted,
abortion becomes a critical backup strategy for dealing with unwanted
pregnancy. In the Supreme Court case Planned Parenthood vs. Casey, the
Court noted, “For two decades of economic and social developments,
people have organized intimate relationships and made choices that define
their views of themselves and their places in society, in reliance on the
availability of abortion in the event that contraception should fail.”⁴
Contraception turns out to be not so much a bulwark against abortion as a
gateway to it.⁵ Of course, if abortion is not morally problematic, this

suggestion will bring no disquiet. As we will show in chapter 7, however,
abortion itself gravely violates the good of human life.

ASSISTED REPRODUCTION

Abe Anderson remarried three years ago. His wife is now forty-three years
old and has not gotten pregnant despite their deep hopes to have children.
Mr. Anderson and his wife present to her ob/gyn asking for help in
achieving pregnancy

The Provider of Services Model

The PSM approach to this clinical moment can be summarized briefly, as
prior themes are repeated here. Respect for patient autonomy gives us a
reason to do what the Andersons ask. In contrast to Ms. Parker, Ms.
Anderson wants to be pregnant, so the state of pregnancy is good for her;
beneficence compels clinicians to pursue that goal. The law, particularly in
the United States, where regulations are few, permits quite a range of
technological interventions to bring about pregnancy, and many physicians
make those interventions available; physicians are also compelled by what
is customary and standard. Moreover, most assisted reproductive
technologies involve pharmaceuticals or surgical interventions that only
physicians are licensed to provide, so Ms. Anderson seems to have a justice
claim—that her physician should make available that which is legal, which
others readily obtain, and to which she has access only with a physician’s
help.

The principle of nonmaleficence seems to countervail these imperatives to
some extent, insofar as many assisted reproductive technologies pose risks
to the woman’s health. For example, in vitro fertilization (IVF) involves the

risks posed by ovarian hyperstimulation and surgical retrieval of oocytes.
As noted above, the state of pregnancy itself brings risks to health that tend
to increase with age. But unless these risks reach the threshold of directly
and imminently causing major bodily injury, physicians must defer to their
patients to weigh the risks and benefits, broadly construed, and make the
choice that is best for each individual patient—that is, the choice that
maximizes all of the goods, as she defines them, available to her.

Curiously, in the domain of sexual and reproductive healthcare, the PSM
leads us to treat the same state of affairs as good and to be sought for one
patient and as bad and to be avoided for another patient; the only difference
is whether the patient wants the state of affairs. Unlike the Way of
Medicine, which focuses consistently on objective human goods, the PSM
detaches from the question of whether a possible state of affairs brings
about genuine good, considering only whether that state of affairs is
wanted.

The Way of Medicine

Assisted reproduction becomes problematic on the Way of Medicine. The
physician again asks, in the first instance, what accommodating the
Andersons’ request has to do with her commitment to preserve and restore
Ms. Anderson’s health, but here the answer is a bit more complicated. If
Ms. Parker had regular sexual intercourse without contraceptive measures
from ages eighteen to twenty-one and did not become pregnant, that would
be evidence of something wrong with her health or the health of the man
with whom she had regular intercourse. Is the same not true for Ms.
Anderson?

Yes, it is, although Ms. Anderson’s case highlights that health is always
relative to a person’s sex and age. To state the obvious, no physician to our
knowledge would consider it a medical problem that Mr. Anderson has not
achieved pregnancy, because the health of men does not include child-
bearing capacity. Similarly, physicians would not at this time consider it a

medical problem that Ms. Anderson had not achieved pregnancy if Ms.
Anderson were eighty years old. The health of eighty-year-old women
simply does not include the capacity to bear children. Ms. Anderson, forty-
three years old and premenopausal, is at a point in life in which the capacity
for pregnancy is characteristically diminished relative to, say, that of a
twenty-three-year-old woman, but some healthy forty-three-year-old
women do become pregnant. Therefore, in the Way of Medicine, the fact
that Ms. Anderson has not become pregnant does give the physician a
reason to get involved—but in what manner, and why?

First, what is the physician’s goal in this case? The initial reaction might be,
“A baby, of course.” After all, the only reason Ms. Anderson wants to be
pregnant is that she wants a baby—presumably a baby that is genetically
hers and her husband’s. If the physician had a reliable way to bring about
pregnancies, but such pregnancies would inevitably end in spontaneous
abortion, Ms. Anderson would not be interested in the physician’s help. Yet
we have already said that health is the proper goal of medicine, and a baby
is not health, so although the physician might reasonably join the
Andersons in hoping that their sexual union will result in a baby’s being
conceived and born to them, the baby—however good and however
strongly desired by the Andersons—lies outside the proper scope of the
physician’s practice.

To give a parallel example, Ms. Anderson might suffer from minor arthritis
that many people would ignore but that keeps her from an activity that she
highly values—say, a form of dance to which she has devoted much of her
life. In such a case, as the physician attends to her arthritis, the physician
might join her in hoping that she will dance again and might readily
understand why this condition that others consider trivial concerns her so
much. Yet the physician’s goal is not dance but the health that makes dance
possible. Similarly, the physician’s aim with respect to Ms. Anderson’s
desire to have a child is the health that makes pregnancy and subsequent
childbirth possible.

Within the Way of Medicine’s approach to Ms. Anderson’s health, much
can be done. Physicians might seek to restore healthy patterns of ovulation,
sometimes through attention to nutrition and exercise and sometimes

through pharmacological interventions—including medications typically
used as contraceptives—such as exogenous hormones to replace or return to
normal levels those that are disrupted in one way or another. Physicians
might intervene via hysteroscopy or laparoscopic surgery to restore patency
to the woman’s fallopian tubes. In parallel, a physician might work to
improve any deficiencies in Mr. Anderson’s capacity to produce healthy
semen, including viable sperm; to achieve and sustain an erection; and to
reach ejaculation. All of these interventions might be reasonably carried out
on the Way of Medicine. These practices are standard for doctors who focus
on responding to infertility, and today a minority of such physicians
explicitly limit themselves to such practices. The latter include those who
put themselves forward as practitioners of NaPro Technology (natural
procreative technology).⁶ These physicians aim at health, hoping that such
health will be followed by pregnancy and childbirth, much as physicians
treating arthritis aim at health, hoping that such health will enable dancing
and other activities that display health.

As we have noted, the PSM is willing to circumvent health altogether in
order to produce a baby. Indeed, this willingness characterizes the entire
terrain of contemporary reproductive medicine in the United States, rightly
characterized by many as a kind of Wild West in which all things are
permitted. Physicians practicing in this area engage in artificial
insemination, in vitro fertilization, surrogacy, and other interventions
intended not to restore or preserve health but instead to use technology and
the remaining health-related capacities available to bring about the birth of
a wanted baby.

PSM-focused physicians will readily subject a woman to substantial risks to
her health if she is willing to undergo such risks in order to conceive a baby.
Gonadal hyperstimulation, for example, is known to cause ovarian
hyperstimulation syndrome, which brings an array of health problems and
in severe cases can be life-threatening.⁷ In the case of oocyte donors,
physicians subject the women to these risks while also treating them
instrumentally, as means to satisfy someone else’s desires. In gestational
surrogacy, physicians likewise treat the surrogate mothers as instruments to
satisfy another’s desires while they impose on the gestating woman all of
the risks that accompany pregnancy. The problem is not so much that

physicians tolerate side effects but that they tolerate side effects that
damage health in order to obtain states of affairs that have nothing to do
with the physicians’ commitment to this good. For these reasons, simply on
the basis of their constitutive commitment to the patients’ health, physicians
have reasons to avoid many assisted reproductive technologies.

As with contraception, the requirements of practical reason converge with
the Way of Medicine’s judgments on these types of interventions. Consider
the argument against those assisted reproductive technologies that separate
procreation from sexual intercourse. In brief, interventions such as IVF seek
to make a baby, exerting mastery over the raw materials of nature (gametes)
by using the technologies available to bring into being a desired product, in
this case, a living human being. As with other instances of making, the
product comes into existence at the pleasure of the makers, who accept the
product on the condition that it satisfies the desires that led them to engage
in the productive process. This feature of conditional acceptance is
manifested in the widespread practices of grading embryos, discarding
suboptimal embryos, selectively reducing embryos when an undesired
number have implanted, and cryopreserving, and perhaps donating to
science, “spare” embryos.

We develop the argument further in chapter 7, but here we note that human
beings at the embryonic stage are still human beings and therefore deserve
the basic respect that we accord to other human beings—especially the
respect of not being killed. Nor should we treat any human being, including
a human embryo, as merely a product or a thing to be brought into existence
at will, for doing so radically contradicts the demands of equality that are
central to the good of friendship even in its thinnest and most extended
sense.

In this sense, human beings are called to a kind of friendship with all other
human beings, in virtue of recognizing that all other human beings also are
fulfilled by basic human goods. This minimal friendship requires us to treat
all human beings with equal respect. Thicker forms of friendship build on
this basic form: even when children cannot yet reciprocate, parents act for
the good of their children as part of their good as parents. In the full

paradigmatic form of friendship, each friend treats the good of the other as
his own good.

IVF and related practices undermine the good of friendship by treating
another human being as a product—as something whose existence is
subject to one’s own will and mastery. These practices undermine
friendship even in its thinnest form, for no human being wishes to be
treated as a thing by another. Moreover, these practices are deeply at odds
with the form of friendship parents characteristically demonstrate toward
their children, in which they neither make their children the objects of their
will nor make their love contingent on the childrens’ satisfying the parents’
desires. One who accepts you only on the condition that you satisfy their
desires cannot be called your friend. With respect to conjugal intercourse,
the attitude appropriate to friendship is fully open to, if not also hopeful for,
that act’s finding its fullest realization in a new life over which the woman
and the man ultimately have little control.

Thus, in vitro fertilization, human cloning (if and when it arrives), and even
more limited technologies such as artificial insemination all seem morally
impermissible. Once again, we have only sketched the argument, which has
been presented elsewhere at greater length and with attention to objections.⁸
But our overall aim here has been to show that the Way of Medicine and the
requirements of practical reason converge in their conclusion that the Wild
West of assisted reproductive technology needs reform. At present, its
modes of practice are deeply at odds with the purposes of medicine and the
demands of practical reason.

SEX AND GENDER IN TRANSITION

Jules Baker, an otherwise healthy thirteen-year-old boy we haven’t
introduced you to before, suffers from gender dysphoria. He identifies as
female and wishes to take hormone-blocking supplements that will delay
puberty until he is old enough to undergo a full sexual transition: sexual

reassignment surgery to remove his male sex organs and provide female
facsimiles by means of plastic surgery.

The Provider of Services Model

The cases of Ms. Parker and Ms. Anderson make plain that physicians
practicing in accordance with the PSM will often set aside the norm of the
healthy organism if doing so accommodates the autonomous choices of
patients. So, under the PSM, whether the physician works to induce sterility
or enhance fertility, to get rid of pregnancy or produce it, often depends
entirely on the patient’s choice. Physicians respectfully refrain from
drawing conclusions about the signs of a “healthy” human organism until
they know what a particular human being wants with respect to his or her
body.

The case of Jules indicates how far this logic extends in contemporary
medicine. If the signs of health with respect to sexual intercourse and
pregnancy depend on the wishes of the patient, why not also the signs of
health with respect to secondary sex characteristics? If the goals of
medicine are rightly determined by the informed choices of autonomous
patients—by what patients determine is good for them—perhaps the form
of “healthy” secondary sex characteristics should also be determined by the
informed choices of patients—by what patients decide are the right
secondary sex characteristics for them.

We now see a burgeoning practice of what have come to be called gender
transition and gender-affirming services—the use of exogenous hormones
and surgical treatments to block puberty and to fashion, as closely as
possible, secondary sex characteristics that appear to match patients’
“gender identity” or “gender preference.”

Changing the secondary sex characteristics of people like Jules takes the
PSM’s rationale one step further, treating the patients’ sexual organs and
underlying sexual physiology as either a good to be preserved or a harm to

be remedied, strictly on the basis of the patient’s self-perception. In the
PSM framework, in the case of Jules, who does not want male secondary
sex characteristics, those characteristics are harms to him, which the
physician has an obligation to remedy insofar as possible. Might the case of
Jules present an opportunity to see the PSM’s inadequacies? If our language
and our framework of analysis lead us to think that we should block a
thirteen-year-old boy’s sexual maturation—often rendering the boy
permanently sterile in the process—perhaps we need a new language and a
new framework.

The Way of Medicine

The Way of Medicine starts with a claim that has been implicated in much
of our discussion thus far. Put simply, humans, like all other animals, are
organisms. Indeed, this fact makes it possible for us to recognize that bodily
health is a real human good rather than an ethereal aspiration.

A corollary claim immediately follows: our existence as human animals is
sexed. We are male or female organisms by virtue of having a root capacity
for reproductive function, even if that capacity is immature or damaged. As
with countless other species, the human reproductive function is performed
jointly by two organisms of opposite sexes; no individual human being
suffices for the performance of reproduction. The two sexes reflect root
capacities for the general structural and behavioral patterns involved in
human reproduction. In male humans, this capacity comprises the structures
necessary for the production of male gametes and the performance of the
male sex act, insemination. In females, the capacity comprises the structures
necessary for the production of oocytes and the performance of the female
sex act, reception of semen in a manner disposed to conception.

Some individuals, due to disorders of sex development, present genuine sex
ambiguity. For example, females with congenital adrenal hyperplasia can be
born with male-appearing external genitalia. To give another example,
disorders with respect to the production and metabolism of testosterone can

cause babies with male chromosomes (X, Y) to develop characteristically
female external genitalia. Some sex and gender theorists have made much
of these and other intersex cases in arguing that the simple binary of male
and female fails to do justice to the diversity of possible sexes. And of
course, opening up the number of “possible sexes” does a certain amount of
work in opening up the possibility of changing one’s secondary sex
characteristics, which is precisely Jules’s desire.⁹

Yet those who deny the sexual binary on the grounds of intersex cases
ignore the distinction between paradigm cases and cases that decline from
the paradigm. This distinction, recognized since Aristotle, applies to many
kinds, including many kinds within the natural order.¹⁰ Organisms, for
example, come in ones: that is part of what it is to be an organism in the
paradigm case. But the Hensel conjoined twins, possessing two arms and
two legs but also two heads between them, are neither precisely one nor
two.¹¹ This distinction between paradigm cases and cases that decline from
the paradigm is necessary to make sense of what physicians do when they
recognize congenital abnormalities, including ambiguous genitalia. Indeed,
the distinction is necessary to make sense of the concept of “intersex”—that
is, not clearly conforming to either the male or the female paradigm. In the
same way that conjoined twins do not refute the claim that organisms are
one, neither do instances of sex ambiguity refute the claim that human
organisms are either male or female.

The Way of Medicine, in its orientation to patients’ health, resists
inducements to interfere with, interrupt, or otherwise revise the healthy
development, maturation, and function of male and female sexual organs
and capacities. Note that the Way of Medicine’s resistance to such
interventions does not depend on conclusions about normative gender
expression, much less about normative sexual practices. Rather, its
resistance follows directly from its orientation to health as an objective
bodily good for and in human animals, male and female. Medicine operates
within the boundaries required by pursuit of this good.

That being said, those who seek to change a person’s sex not only
contradict medicine’s orientation to health but also always and necessarily
fail in what they attempt. Indeed, here the logic of the PSM leads to absurd

contradictions in which some justify changing secondary sex characteristics
by claiming that one’s phenotypic (or genetic) properties can be at odds
with one’s real sex—a feature of some disembodied reality to which only
the individual has access—while others justify such interventions by
claiming that there is no such thing as one’s real sex.

From these mutually incompatible claims, further contradictions follow. To
affirm who Jules is, we are told, physicians must reject Jules’s current form
and refashion his body to look very different from the body of Jules as he is.
Because gender is socially constructed—not dependent on biology and
anatomy—we are to change that biology and anatomy on which gender
does not depend. In order to get beyond the constraints of the sexual binary,
we are to reify it by seeking to produce secondary sex characteristics
determined by that binary. The contradictions in such reasoning would be
comical if they did not result in such tragic consequences for people like
Jules.

Moreover, changes to secondary sex characteristics fall far short of bringing
about a change in sex. The latter would make a male organism capable of
engaging in the female sex act, or vice versa. Sex change (“gender
transition”) interventions do nothing of the sort. Rather, they culminate in
surgeries to remove sexual organs—for example, a penis or a vagina—and
to refashion simulacra of the organs that members of the opposite sex
characteristically possess. But one can neither make a vagina by creating an
orifice nor make a penis by creating something that becomes enlarged on
stimulation. One could genuinely make a penis or a vagina only by re-
creating the entire biological economy of the human being, whose
development as a male or female began at conception.

Within that primordially sexed biological economy, the functions of the
penis and the vagina are discernible in relation to the sexual act to which
they contribute, which culminates when sperm are deposited in the vagina,
where these sperm are capable of processing toward and penetrating the
oocyte. Moreover, the penis and the vagina are linked intrinsically not only
forward to these functions that they might eventually perform but also
backward to processes, such as the production of gametes (all oocytes are
produced in utero), which began many years before sexual intercourse is

even possible. The biological development of male and female human
organisms involves the working out through time of capacities that were
present at the beginning.

Physicians can transplant a penis to a male or fashion a vagina in a female
so that the organ becomes truly part of the person’s biological life.¹² The
situation is similar to that of a heart transplant. The organ is integrated into
an organism whose biological matrix is fundamentally oriented toward that
organ’s presence and for whom the absence of the organ represents a
significant diminishment of health. Redressing such diminishments is
entirely within the scope of medicine’s mandate, even if the redress does
not fully restore the diminished function. For example, if a transplanted
penis allows normal urination but does not result in full erectile function, it
still restores a dimension of health. No surgery, however, can integrate a
male sex organ into the biological life of a being whose root capacities are
female (and vice versa).¹³

Unfortunately, the PSM seems increasingly committed to ignoring the
antinomies and contradictions posed by granting patients the gender
transition or gender affirmation interventions they seek. In doing so, the
PSM makes patients’ wishes and choices determinative of both sex and the
purpose of medicine. Some physicians today use exogenous hormones and
surgical interventions to bring about changes in patients like Jules. These
changes, were they brought about in the absence of the patient’s asking that
they be done (or, in pediatric patients like Jules, the patient’s parent asking
that they be done), would be considered profound mutilations of a healthy
body. So the contradictions in the PSM lead to tragic consequences, as these
interventions irreversibly damage the health of the patient.¹⁴ Yet, because
these interventions are patient-chosen, the PSM and its surrounding social
and legal culture not only permit physicians to conduct these interventions
but also increasingly charge physicians who refuse to participate in them
with abandoning their professional obligations to “put the patient first.”¹⁵

The Way of Medicine cannot but dissent from these increasingly common
judgments. Because the Way takes its bearings from the health of the
patient as a member of the human species, the Way of Medicine sees that
every surgical attempt to change an individual’s sex damages or destroys

some secondary sex characteristic that otherwise displays health and is
necessary for reproductive function, itself a constitutive dimension of
human health. This judgment of the Way of Medicine is only strengthened
by the requirements of practical reason, which add a corollary concern:
since sexual capacities make possible the one-flesh union of marriage,
interventions that damage or destroy those capacities also prevent the
realization of the basic good of marriage.

Thus, the Way of Medicine cannot countenance doing to Jules what he asks,
not because of bigotry or phobia but because, in solidarity with patients like
Jules, medical practitioners should act only in ways that are congruent with
the patient’s health and only in ways that are open to other basic goods,
including marriage and child-bearing. When a young woman with anorexia
sees herself as overweight, she manifests a disorder of perception. The good
physician shows no disrespect to the patient when she refuses to facilitate
further weight loss through surgery or medications. Rather, such refusals
are part and parcel of the physician’s commitment as a physician to care for
the patient. Similarly, Jules deserves our care and attention, but his problem
is not the presence of male secondary sex characteristics. Rather, he suffers
a disorder of perception regarding his nature as a human being, one who is
irrevocably and irreducibly male. The physical harm of bodily mutilation
should not compound the harms of that illusory perception.

To our minds, the willingness of contemporary medicine and society to
embrace such solutions manifests one of the fullest culminations to date of
the PSM to abandon concern for objective goods, to treat medicine as if it
were merely technique, and to put medical technologies in service of
autonomous desire. That culmination is continuous with the PSM’s
approach to contraception, assisted reproduction, and many other questions
surrounding sexuality and reproduction that we cannot address here. It’s no
surprise, then, that our treatment of these issues runs radically counter to
current medical orthodoxy.

Nevertheless, the Way of Medicine’s approach to these issues preserves the
possibility of medicine’s being a profession and of medical professionals’
being more than mere functionaries. The Way of Medicine also—as we
show in the next chapter, on abortion—acknowledges the moral demands

that a common humanity places on all of us, physicians and nonphysicians
alike.

CHAPTER SEVEN

Abortion and Unborn Human Life

Let’s return to the story of Cindy Parker.

Cindy received a prescription for birth control pills and took the pills
consistently until she broke up with her boyfriend. She was not sure when or
if she might have sex again, and one of the nurses at the student health
clinic had told her that if she had unprotected sex, she could buy emergency
contraception at the pharmacy without a prescription. Three months later
she did have sex again, and the following morning she purchased and took
emergency contraception pills. Three weeks after that, she returned to
student health, having noticed that she had missed her period. A pregnancy
test confirmed that she was pregnant. With tears in her eyes but
determination, she asked, “Where can I get an abortion?”

No issue in medical ethics is more consequential and politically divisive
than abortion, and though the legal and ethical lines have been clearly
drawn for decades, political leaders, medical ethicists, clinicians, and the
public alike continue to contest those lines, pushing for or against abortion
restrictions.

Our goal here is not so much to trace out all of the arguments for or against
abortion as to show the differences it makes if we consider Cindy’s request
for an abortion within the framework of the provider of services model
(PSM) versus the Way of Medicine.

THE PROVIDER OF SERVICES MODEL

The PSM approaches a request for abortion more or less as it does a request
for contraception, assisted reproduction, or gender transition. To start, the
fact that abortion is constitutionally protected and is endorsed by the
American College of Obstetricians and Gynecologists (ACOG) as an
essential healthcare service gives Ms. Parker’s request the force of law and
custom.¹ In addition, autonomy again looms large in the ubiquitous
language of choice, while beneficence again asks us to consider all of the
different outcomes that Ms. Parker might have valued, with deference to
Ms. Parker to decide whether abortion was the choice that would bring
about the greatest good for her. The condition of nonmaleficence was
satisfied in that early abortion is safe, arguably carrying less risk to Ms.
Parker’s health than continuing her pregnancy to term. And, once more,
justice asked us to consider whether it was fair for Ms. Parker to be forced
to carry to term a pregnancy that she did not want.

The language of justice has become particularly prominent among those
who advocate for legal abortion. Medical students and
obstetriciangynecology residents today often receive training in
“reproductive justice,” a concept that makes access to the full range of
family planning options an essential part of broader social justice for
women and girls. If Ms. Parker was to have the same prospects that she
would otherwise have had if she were male, she could not be asked to
shoulder consequences that did not fall on the man with whom she had sex.
Unlike him, Ms. Parker would have her life plans radically disrupted if she
did not have access to abortion.

So while the PSM might acknowledge genuine moral concerns regarding
abortion, it will consistently bracket them off as a matter of personal values
that intrude on the clinician’s professional obligation to accommodate, at
least by referral, the patient’s request for abortion. As long as Ms. Parker
was making an apparently free and informed choice of the healthcare

service she believed was best for her, her physician had to either perform
the abortion or direct Ms. Parker to someone who would.

THE WAY OF MEDICINE

The question of abortion is dramatically recast in the Way of Medicine.
Right up front, the Way of Medicine has us ask: what does abortion have to
do with the physician’s commitment to preserve and restore Ms. Parker’s
health? There are cases—for example, of severe preeclampsia or significant
heart conditions—in which the condition of continued pregnancy gravely
threatens the woman’s health, and we return to such cases below. But in the
great majority of cases, as in Ms. Parker’s, abortion is sought not for the
sake of health but for the sake of not having a baby. Abortion is a means of
preserving current and future possibilities for the woman that appear to be
threatened by carrying the pregnancy to term. That abortion concerns
choice, not health, is shown by the fact that a physician will treat two
otherwise identical patients differently based simply on whether their
pregnancies are wanted. With one patient, the physician will celebrate the
fact that she has achieved pregnancy and even promise to use all manner of
medical resources to see that her pregnancy continues to term. With the
other, the physician will perform or refer the patient for an abortion.

So far, then, in the Way of Medicine, physicians have good reason to
decline to participate in elective abortions, quite apart from the question of
what abortions do to the fetuses. In Ms. Parker’s case, the physician might
decline her request simply because his commitment to her as a physician
does not include bringing about a state of affairs in which she is no longer
pregnant.

When the life and health of the fetus are taken into account, however, the
physician’s refusal becomes imperative. From the time that the Hippocratic
Oath was formulated until shifts in some quarters starting in the 1960s,
medical oaths and codes in the West consistently condemned elective
abortion as contradicting physicians’ constitutive professional commitment

to never intentionally damage or destroy the health and life of patients. The
Hippocratic Oath stated, “I will not give to a woman an abortive remedy.”²
The “Hippocratic Oath Insofar as a Christian May Swear It,” which had
much wider circulation in the early centuries of the Christian era, expanded
this prohibition by stating, “I will not give treatment to women to cause
abortion, treatment neither from above nor from below.”³ The World
Medical Association’s 1948 Declaration of Geneva included the promise “I
will maintain the utmost respect for human life from the time of conception,
even under threat.”⁴

Notably, in 1983 the words “from the time of conception, even under
threat” were revised to “from its beginning, even under threat,” and in 2005
these words were removed from the Declaration of Geneva altogether.
These revisions were mirrored by changes in the codes of other professional
associations,⁵ and they reflect the fact that abortion was legalized in many
countries in the later decades of the twentieth century. They also reflect,
however, growing disputes about what the fetus is and whether respect for
human life really rules out abortion.

Surely a fetus is not a human being, some have objected, but instead only a
clump of cells. Or, even if the fetus is a human being, surely we do not owe
to it the same kinds of treatment we owe to the human beings reading and
writing this book. Moreover, what about the hard cases, in which a
woman’s life is in significant jeopardy? What authority do physicians, much
less the state, have to tell women they should not be free to make such
personal, indeed private, choices? We look at each question on the Way of
Medicine.

ANIMAL ORGANISMS

Throughout this book we have presupposed that we are all animal
organisms of a certain sort: human beings. The practice of medicine is
founded on this truth. The vocation of the healing profession starts with a

recognition that, as animal organisms, humans are susceptible to illness,
disability, decline, and death. We would not need medicine if we were only
disembodied souls or minds.

For complicated historical and philosophical reasons, however, modern
human beings have come to think and talk about themselves as if they were
souls or minds who happen to possess, for a time, a living body. Moderns
are accustomed to say, for just one example, that a person suffering
dementia is “not there anymore.” In part, this way of talking reflects the
cultural elevation of humans’ singular capacity for thinking and choosing—
that mindedness that seems to distinguish humans from the other animals.

Notwithstanding its popularity, this form of dualism is misguided. Pay
attention to your direct experience. Right now, as you read these words, you
are engaged in a sensory act, making use of your eyes and your hands, and
you are oriented in space toward the physical realities of words on a page
(paper or electronic); perhaps you are listening with your ears to sound
vibrations in the air as the recorded book is read to you. These acts are
those of a bodily being, specifically the organism who is sitting, reclining,
or walking (with earbuds) here and now. But you are also following an
argument, a train of thought, that makes use of abstract terms such as
“organism” and “abstract” and “thought.” These acts are those of a minded
being, a being capable of intellection. You are both of those beings, as
evidenced by your use of the word “I”: “I am seeing these words on the
page, and I am understanding them.” Thus, the minded being you are is the
same being as your physical, bodily being. One and the same being reads
and understands, sees and cognizes, moves and abstracts. You are that
human being, that living organism.

THE BEGINNING OF THE HUMAN BEING

If we accept the discussion so far as true, you came into existence whenever
the living organism reading this book came into existence. You were not
preceded by another living human organism, as might be possible if you

were a mind (or even a brain); rather, your existence commenced with the
existence of the human animal reading or listening to this book right now.

When did you begin? The answer, if you are not an identical twin or a
human clone, is simple: you began at fertilization, when a human sperm
penetrated an oocyte and both sperm and oocyte ceased to exist, giving rise
instead to a single-celled zygote. This zygote was itself a single, whole,
individual member of the species Homo sapiens, genetically distinct from
its parents and possessed of a developmental program by which it was able
to execute its own growth and development to the next stages of human
existence: the embryonic stage, then the fetal stage, then the infant stage,
and so on.

The best evidence for this claim comes directly from the science of
embryology and the authority of those who study human development and
the development of other organisms, such as mice. Consider the following
representative passage from K. L. Moore, T.V.N. Persaud, and Mark G.
Torchia’s textbook The Developing Human: Clinically Oriented
Embryology:

Human development begins at fertilization when a sperm fuses with an
oocyte to form a single cell, the zygote. This highly specialized, totipotent
cell (capable of giving rise to any cell type) marks the beginning of each of
us as a unique individual. The zygote, just visible to the unaided eye,
contains chromosomes and genes that are derived from the mother and
father. The zygote divides many times and becomes progressively
transformed into a multicellular human being through cell division,
migration, growth, and differentiation.⁶

Two primary arguments are made against the claim that a human organism
comes into existence at fertilization, but neither argument can be sustained.
First, some claim that because the early embryo is capable of twinning, it
therefore cannot be considered one individual organism. What shall we
make of this? Does the possibility of some one thing becoming two mean

that it once was not one thing? No one who has ever snapped a stick in half
could believe that. Nor, in the domain of living things, are microbiologists
tempted to believe that amoebae, which reproduce precisely by splitting,
were not individual organisms prior to splitting. Similarly, the phenomenon
of twinning does not suggest that the zygote or embryo was not a human
organism prior to twinning. Rather, it indicates that some human beings
came to exist later than fertilization—namely, when their embryo divided,
resulting in two embryos where once there was only one.

The second argument holds that the zygote or early embryo does not have
sufficient unity, within itself, to be considered a living whole. This line of
argument sees the early embryo as merely an aggregate (a “clump”) of
cells. Several problems arise with this claim. What could cause this mere
aggregate to become one thing? Indeed, the transition of numerous cells
into a single organism several days later than fertilization must be seen as
an extremely implausible, inexplicable event. Moreover, embryologists find
an enormous amount of activity, much of it coordinated, among the various
parts of the developing embryo, activity oriented toward ensuring the
embryo’s survival and growth. Nor is this coordinated activity the same in
all cells. Rather, embryologists observe division of labor among the cells of
even the very early embryo, and from the first cell division the roles of
some cells can be distinguished from the roles of others. That is, the embryo
does not appear to biologists as a mere clump or aggregate of
undifferentiated cells.⁷

The two claims just made—that humans are animal organisms and that
human organisms begin at fertilization—concern only the way things are.
They are not yet claims about ethics, about how we ought to act in light of
the way things are. Yet we have said enough to demonstrate a foundational
fact: abortions destroy human lives, where “human lives” means precisely
the lives of actual living human beings. If medicine is committed to the
health of human beings, this fact is of the greatest significance. It leads
directly to the ethical claim that medical practitioners should not perform or
facilitate abortions.

FULL MORAL WORTH AND RESPECT

Our discussion should also appeal to the full resources of practical reason
and its requirements. In addressing abortion, we are concerned with
whether killing certain human beings—namely, the unborn—is morally
permissible. Could it be that as a class the unborn are excluded from the
moral protection owed to other human beings? Three brief arguments can
respond to this question; all have been offered in expanded form
elsewhere.⁸

First, the basic human goods, including the goods of health and life, are not
to be damaged or destroyed in unborn human beings any more than in born
human beings. Recall our claim about basic goods: as intrinsically good,
they give us reasons to act, and intending their damage or destruction can
never be reasonable. Therefore, abortion, when it involves intentionally
destroying the life of an unborn human being, is always wrong, ruled out by
the same principle that governs other moral absolutes. (We address below
whether abortion could be something other than intentional killing.)

Next, because the basic goods of human beings are good for all,
intentionally killing the unborn is unfair. As the second general requirement
of practical reason, fairness was formulated with the awareness that all
human beings benefit from realization of the basic goods. Full
reasonableness requires, then, that we not consider the goods to be less
important, or less good, in some persons than they are in others (including
ourselves). Nor should we, in our pursuit of particular instances of these
goods, prioritize some and neglect others on the basis of arbitrary or
contingent motivations. Both of these patterns violate the Golden Rule,
doing to others what we would not have them do to us.

The proponent of elective abortion who acknowledges the humanity of the
unborn—who is not so self-deceived as to think of unborn human beings as
mere clumps of cells—is proposing to treat the good of life and health as of
lesser importance in some human beings, the unborn, than in others, and to
do so on the grounds that the life of the unborn is inconvenient, unwanted,

small, or an obstacle to a woman’s authentic development. None of the
grounds for sacrificing the lives of the unborn to privilege the lives of the
born seem to us any more cogent than the grounds for privileging white
lives over black, male over female, or native-born over immigrant. Fairness
thus forbids us to exclude the unborn from the class of human beings who
have the right not to be killed.

Finally, the right not to be killed intentionally is reasonably considered a
basic or absolute right. We can distinguish between rights and protections
we possess that are based on our particular contingent and sometimes
changing status, condition, or circumstances, and rights we think of as
absolute. The former include rights to vote, to have one’s work graded on
time, to be given a share in the benefits paid into in a pension system, and
so on. The latter include rights not to be enslaved, raped, tortured, or killed.

The second set of rights are thought to be held always and equally by all
who hold them, whomever that class includes. These rights should thus be
predicated on some truth that is likewise not passing and is true equally of
all who hold such rights and protections. That truth is their common
humanity; being human is the characteristic that all beings who have such
rights possess always and possess equally with all others who have those
same rights. If that is true, the rights not to be enslaved, raped, tortured, or
killed should be respected equally and always, with regard to every human
being, including all unborn human beings, who are no less human than they
will be once they are gestated and born.

These three arguments lead to the conclusion that what is true for medical
professionals is true for all: no one should ever intentionally damage or
destroy the life and health of an unborn human being. Abortion, understood
as the intentional killing of an unborn human being, is always and
everywhere morally impermissible.

ABORTION AND PRIVACY

These arguments also make clear that abortion is not merely a private
matter. The last recourse of those who would defend abortion is to claim
that arguments against it are a matter of personal, often religious, beliefs,
not public or professional concern. This claim is almost never argued, but it
has a kind of axiomatic quality in contemporary culture, characterized as
that culture is by its emphasis on what philosopher Charles Taylor calls “the
ethics of authenticity”—the notion that what is most important in life is for
each person to become the self that that person authentically chooses to
become, based on each individual’s own lights and without the censure or
imposition of external standards. This culture gives rise to the PSM.

The key premises that we have drawn upon to assess the practice of
abortion, however—that human beings begin at fertilization and that all
human beings have the right to not be killed at will—are neither esoteric
nor a matter of religious revelation. Rather, these are claims of human
reason that are accessible to all. The first is a claim of science, the second a
claim of the moral law known by practical reason (natural law, the Tao).
That moral law makes it possible for the public to recognize and defend
human rights and to evaluate particular practices, as well as explicit policies
and laws, as to whether they are just or unjust.⁹

Abortion is a public matter in a further crucial sense. When medical
practitioners exclude from the scope of their concern the lives and health of
some human beings, that damages the practitioners’ publicly expressed
commitment to patients’ health. Similarly, when a polity excludes from the
scope of its legal concern the lives of some human beings within its legal
boundaries, that damages any publicly expressed commitment to justice and
equality. These commitments are the foundations of the medical and
political communities, respectively; to damage them is to damage public
trust in these communities. The widespread permission, acceptance, and
practice of abortion are thus public wrongs in the sense that they erode the
fabric of a public, whether that public is the profession of medicine or a
political state pursuing justice.

ABORTION AND INTENTION

We argued in the previous section that abortion, insofar as it involves
intentional killing, is morally wrong. But must abortion always involve
intentional killing? In chapter 5 we explained that it can be permissible to
allow a bad effect if that effect is not intended, provided that proportionate
reason exists for allowing it. This claim is essential for thinking about
several issues surrounding abortion.

In what follows, we briefly address a famous attempt by Judith Jarvis
Thomson to justify abortion by arguing that it need not involve intentional
killing. We argue that in most cases abortion does involve intentional killing
and that abortion for the sorts of reasons Thomson envisaged would be
wrongful even if the death of the unborn were not intended.

We then turn to discuss vital conflict cases, those in which one or both of
the lives of the mother and child are at mortal risk and in which one or both
will surely die unless a medical intervention is performed that results in the
loss of the unborn human being’s life.¹⁰ We look first at some cases in
which natural law theorists exhibit wide agreement, then consider cases in
which the judgment that the child’s death is a side effect remains
controverted.

THOMSON’S VIOLINIST

Philosopher Judith Jarvis Thomson has advanced perhaps the most famous
argument in defense of abortion.¹¹ Thomson begins by noting that much of
the debate surrounding abortion concerns whether the unborn human being
is a person. Those who oppose abortion, she writes, typically “spend most
of their time establishing that the fetus is a person, and hardly any time
explaining the step from there to the impermissibility of abortion.”¹²
Meanwhile, “those who defend abortion rely on the premise that the fetus is
not a person, but only a bit of tissue that will become a person at birth.”¹³ In
contrast, for the purposes of her argument, Thomson grants that the fetus is

a person, then asks whether abortion is indeed impermissible on that
assumption. This is one of the great innovations of her article, and one
reason it has gained such acclaim.

At this point, readers might note that we spent time not on the question of
personhood but rather on the question of whether the fetus is a human being
(a question elided in Thomson’s contrast of “person” with “bit of tissue”).
That the fetus is a human being we take to be a matter of settled science, but
one that also can be defended philosophically. Pro-choice thinkers such as
Peter Singer agree with us on this point, conceding that it is obscurantist to
deny that the fetus is a human being (What else would it be?). Unlike
Singer, however, we hold that it is wrong to intend the death of any human
being, whereas Singer and many others hold that those human beings who
do not possess certain qualities—the qualities of personhood—may be
killed justifiably.

Note, then, that with respect to bioethics, and particularly the question of
abortion, the language of personhood is typically invoked in order to
distinguish which, among all human beings, are those who do not deserve
(because they are not persons) the respect we generally owe to other human
beings, including the respect of not killing them. Our argument, then, unlike
those Thomson was aware of, does not start with the idea of “person” but,
in a sense, ends with it, for it follows from our conclusion that embryos and
fetuses are persons, meaning beings whose lives should not be intentionally
damaged or destroyed.

Thomson presents an argument for abortion that concedes this claim—that
fetuses, as human beings, should not be killed intentionally. To do so, she
presents the reader with the following scenario: You wake up to find you
have been abducted by the Society of Music Lovers and medically attached
to a famous violinist who is unconscious and ill. He needs the use of your
kidneys for nine months to survive his disease; if you detach yourself from
him, he will certainly die.

Thomson believes that the average reader will intuit that it would still be
permissible to detach yourself, and in the situation as described, we agree.
Thomson’s scenario is one in which the rule of double effect applies. Must
you, by detaching yourself, intend the death of the violinist? It seems not.

Rather, you might reasonably intend to avoid the burdens of attachment. Is
detaching yourself unfair? Not necessarily. In Thomson’s scenario, the
violinist has no real moral claim on you—you were abducted, after all—and
so it does not seem unfair for you to detach yourself, thus avoiding a nine-
month involuntary confinement forced on you by someone with no
connection to you.

But the great majority of elective abortions do not resemble this situation at
all. Like Ms. Parker, most women who seek abortions do so because they
do not want, or do not feel ready, to be mothers. However understandable
these desires are, in such cases the woman’s intention clearly includes the
death, not merely the “disconnection,” of the fetus, as the fetus must die in
order to prevent it from developing into a baby to whom the woman is the
mother. Indeed, while Thomson believes that her argument supports only
disconnection from (or, more realistically, expulsion of) the fetus, others
have argued that the constitutional right to abortion in the United States
entails a right to the death of the fetus lest the right to abortion be whittled
away by improvements in technology that make it possible to sustain
fetuses outside the womb at earlier and earlier stages of pregnancy or the
right be forfeited in cases of botched abortions that produce live births.¹⁴

Suppose, however, that some abortions are not like this. Imagine a woman
who would, if it were possible, readily permit her fetus to be removed to an
external form of life support and seeks detachment merely to avoid the
burdens of providing the fetus further “womb room” or sustenance. In such
a case, however uncommon, detaching the fetus would not involve
intentional killing, and the death of the unborn child would be a side effect.
Could such an abortion be morally permissible?

Not, we suggest, in the kinds of cases Thomson has in mind. Note first the
differences in the kind of relationship the reader has to the violinist
compared with the relationship Ms. Parker has to the fetus inside her. In the
former it may make sense to talk only of “the woman” and “the violinist,”
but in the latter it also makes sense to talk of “the mother” and “her child.”
The mother-child relationship is quite unlike the relationship between the
reader and the violinist in Thomson’s example, even when the mother did
not desire the relationship and even, as in the tragic cases of sexual

violence, when the relationship has been forced on her through another
person’s criminal actions. We are animal organisms, and mother and child
share a real biological relationship; because those biological beings are also
persons, the relationship is also personal, even if it is not desired.

We recognize that this claim will strike some as extreme, even offensive,
and we readily concede that a woman who seeks an abortion after suffering
sexual violence is less blameworthy than one who seeks an abortion after
sexual intercourse in which she freely engaged. We also concede that when
abortion is chosen to end a pregnancy that follows consensual sex, the man
often bears as much responsibility for the abortion as the woman—and, in
some cases, more.

The point here is not to assign blame but to clarify that, contrary to what
Thomson’s hypothetical would suggest, biological relationships can create
obligations, even if those obligations have not been accepted voluntarily. If
a young baby turns up on a man’s doorstep and he realizes the baby is his
biological daughter—perhaps the man had had a one-night stand and the
mother has abandoned the baby—biological paternity and the child’s
vulnerability create a real obligation to provide assistance to the baby, one
extending well beyond nine months. If the man knows that his biological
daughter will surely die without the food and shelter he is able to provide, it
seems to us profoundly unjust for him to refuse. The same would hold true
if an elderly man showed up on the doorstep of a young woman and
identified himself as her father, perhaps separated from her years before by
war or another circumstance for which he was not responsible. Children
never choose their biological parents, and yet it seems that children
nevertheless have obligations to their parents that they do not have to
others. Biological relations matter morally, even though they are not
chosen. Indeed, if Thomson’s violinist scenario were changed only a little—
if, say, the reader learns that the violinist is the woman’s long-lost child or
long-lost sibling, we doubt that the reader’s intuitions would be so solidly in
favor of her detaching from him; indeed, they might become solidly in
favor of the opposite.

In a moment, we will consider cases that differ further from Thomson’s
example because in them the mother’s life is in danger. But we conclude

here that, apart from such cases, it is typically unjust because unfair to
refuse life-sustaining aid to one who is closely related to us, particularly
when we can provide such aid and others cannot; and this unfairness is
particularly at odds with a mother’s unchosen vocational responsibilities. If
we would help our child in the doorstep scenario or in the violinist scenario
but not in the abortion scenario, it seems that our refusal to help in the
abortion case is unfair—motivated by an unreasonable prejudice against the
unborn. Thomson’s article, then, does not in fact grant the personhood of
the fetus, for it fails to treat the unborn with the respect we accord to all
those whose deaths we would neither intend nor accept as a side effect
without proportionate reason.

DOUBLE EFFECT AND LIFE-SAVING ABORTION

Having gone so far to critique the vast majority of abortions, we here argue
that in rare cases in which a mother’s life and health are gravely threatened,
medical practitioners sometimes can reasonably intervene to preserve the
mother’s life even when their intervention will inevitably cause the death of
the unborn child as a side effect. Such interventions, as we explain, neither
contradict a physician’s commitment to the patient’s health nor are they
ruled out by practical reason.

One paradigmatic such case concerns a pregnant woman with a cancerous
uterus, whose cancer must be addressed before delivery or the woman will
die and the child also will die. Is it permissible to perform a hysterectomy
on the woman, removing the cancerous uterus and with it the unborn, pre-
viable child, even though this inevitably will result in the child’s death? The
rule of double effect indicates that the answer is yes: the end of the surgery
is preserving the mother’s life; the means is the removal of her diseased
uterus. The bad effect, which it would be immoral to intend, is the death of
the unborn human being. Is there a proportionately good reason to accept
that effect? In this case, yes, clearly: both mother and child will die if the
operation is not performed. Thus no one is being privileged, much less
arbitrarily privileged, over another. The mother’s life is not judged more

important than the child’s; rather, her life is the only life that can be saved.
In this case, the Way of Medicine would approve of the hysterectomy.

What if the life of the mother could be preserved, or that of the child, but
not both? Some argue that the mother’s life should be preserved over the
child’s because the mother is the physician’s primary patient. To us this
conclusion does not seem obvious. A physician charged with caring for a
pregnant woman has, whether he recognizes it or not, two patients—two
vulnerable persons under his care whose health is at stake. Those persons
stand in somewhat different relationships to the physician, for only one can
communicate her wishes and decisions, agree to be the physician’s patient,
and so on. But, as in the case of a traffic accident that a doctor happens
upon, we think that the proximity of the vulnerable child and the exigency
of the child’s health-related needs—not to mention the child’s relatedness to
the physician’s obvious patient—both contribute, in conjunction with the
physician’s vocation, to the physician’s having obligations directly to the
child in addition to the child’s mother.

That being said, the woman, as the child’s mother, has substantial authority
to make decisions both for herself and for her child. She is the one in the
position to evaluate the options in light of her own vocation. Although in
principle either decision could be fair, her vocational commitments and
obligations give her reasons in light of which she can determine which
choice to make in this awful situation.¹⁵ In our view, therefore, the decision
as to whether the physician should strive to preserve her life or the life of
her child is the mother’s to make.

A salpingectomy for an ectopic pregnancy is another paradigmatic scenario
in which the Way of Medicine permits a lethal intervention. In such a case,
the embryo has implanted in the woman’s fallopian tube. Continued
pregnancy will inevitably lead to the death of the embryo, and it also can
threaten the life of the mother if the fallopian tube ruptures. In a
salpingectomy, the surgeon removes the portion of the fallopian tube that
contains the embryo. Again, the physician’s end is to preserve the mother’s
life and health; the means is removing the compromised segment of the
fallopian tube. Negative effects of this intervention include not only the
embryo’s death but also the risk of future infertility in the woman. This case

seems to straightforwardly satisfy the rule of double effect, along the same
lines as the case of the woman with a gravid but cancerous uterus.

Before turning to more contentious cases, let’s consider the definition of
“abortion.” Earlier we argued that it is always impermissible to
intentionally kill an unborn human being. We then, in response to Judith
Jarvis Thomson’s line of reasoning, argued that in the great majority of
cases it is also impermissible, because unfair, to accept the death of the
unborn child as a side effect of an intervention to end the state of
pregnancy. However, the two cases we have just described—those of the
pregnant woman with cancer in her uterus and the woman with an ectopic
pregnancy—both indicate that in some cases a physician can intervene to
preserve the mother’s life and health even when doing so will inevitably
cause the death of an unborn human being.

So we propose to define “abortion” not as any medical intervention that
results in the death of an unborn human being but rather as any act that
either intentionally or unjustly ends the life of an unborn human being. All
abortion so defined is morally impermissible, and likewise, no act is an
abortion that accepts the death of an unborn human being as the justifiable
side effect of an attempt to preserve the mother’s life.

CONTROVERSIAL CONFLICT CASES

In this section we briefly discuss three cases that continue to be
controversial among proponents of the Way of Medicine. Although we
cannot settle these cases definitively, we show how the controversy
surrounding them illustrates the two different approaches to intention that
we described in chapter 5. In each case, the debate concerns whether the
death of the unborn human being is intended or is a side effect.

The Phoenix Case

In 2009 a dispute arose concerning whether an attempt to save a mother’s
life was an abortion or a justified application of the rule of double effect.
The case occurred in Phoenix, Arizona, and the hospital in question
described it thus:

A woman in her 20s with a history of moderate but well-controlled
pulmonary hypertension found out she was pregnant. There was concern for
her health, because pregnancy with pulmonary hypertension carries a
serious risk of mortality. Because of the severity of her disease, the
woman’s risk of mortality was close to 50 percent. In November 2009, the
woman was admitted to St. Joseph’s Hospital and Medical Center with
worsening symptoms. Tests revealed that she now had life-threatening
pulmonary hypertension. The chart notes that she had been informed that
her risk of mortality was close to 100% if she continued the pregnancy. The
medical team contacted the Ethics Consult team for review. The
consultation team talked to several physicians and nurses as well as
reviewed the patient’s record. The patient and her family, her doctors, and
the Ethics Consult team agreed that the pregnancy could be terminated and
that it was appropriate since the goal was not to end the pregnancy but to
save the mother’s life.¹⁶

How does one analyze this case with respect to the intention of the mother
and her doctors? In chapter 5 we distinguished between two accounts of
intention. For one, what matters primarily is what is proposed and
undertaken from the standpoint of the agent who is acting. For the other,
external factors such as closeness bear on what an agent intends. In the first
account, from the standpoint of the mother and the physicians, the fetus’s
death is not the means by which the strain on her heart may be relieved; the
means, rather, is removal of the connection between her child and her body.
The placental connection to the fetus is putting inordinate strain on her
heart, thus gravely threatening her health and life, and removing that

connection is itself the action necessary to preserve her life. So, in this first
account, the death of the fetus is not intended. We still need to consider
whether there was proportionate reason to allow the death of the fetus as a
side effect and, in particular, whether allowing that death was fair given that
the child was going to die no matter what was done. We return to this
question shortly.

But first, consider the following analysis advanced by Fr. Nicanor
Austriaco, which is emblematic of the alternative account of intention:

When the doctors chose to remove the child’s placenta to save his mother’s
life, they necessarily also chose to kill him, because they were choosing to
remove a vital organ of an innocent human being in a manner that would
end his life. They chose to kill him in the same way that a Mayan priest
who chooses to remove a beating heart from a sacrificial victim to placate
the gods also chooses to kill him. Evil was done (the killing of the child) for
the sake of obtaining a good (the restoration of the health of the mother).¹⁷

On Austriaco’s understanding of intention, to choose to “remove a vital
organ” (the placenta) is choosing to kill, regardless of how things are
understood from the agent’s perspective. Accordingly, the question is
settled immediately: intentional killing is always wrong, so the doctors’
actions in the Phoenix case were unethical.

We disagree with Fr. Austriaco’s analysis. The death of the fetus
accomplished nothing for the mother or the physicians. Rather it was
entirely the detachment of the placenta that was sought, and then the
subsequent removal of the placental and fetal remains. We do not think it
accurate to say that “they necessarily also chose to kill [the fetus].” Rather,
they chose to detach the placenta, foreseeing and accepting that the fetus
would be killed as a side effect.

There remains the question of whether this decision was fair, and here we
think the answer is clear. If the death was not intended, the decision to end

the pregnancy was certainly fair, as otherwise both lives would have been
lost. The intervention did not privilege one life over another but merely
preserved one life instead of sacrificing both. We think it evident that the
intervention honored the Golden Rule—that a reasonable person, faced with
a scenario in which both the child and his mother would die soon if nothing
were done, but in which his mother’s life might be preserved by a procedure
that would result in his death, would affirm the intervention to preserve his
mother’s life. This is not unlike an awful scenario in which one rock
climber who has fallen is hanging tethered to another, and both will die
unless the tether is cut. If the agent-centered account of intention is correct,
and if neither the mother nor her doctors intended her baby’s death, the
placentectomy was not an abortion and was instead a properly health-
motivated intervention, albeit one with a tragic consequence.

Ectopic Complications

Among proponents of the Way of Medicine, similar disagreements have
persisted about how to address ectopic pregnancies. As we noted,
salpingectomy is universally supported, but questions have been raised
about two alternate interventions, salpingotomy and administration of the
drug methotrexate.

In a salpingotomy, a longitudinal incision is made in the fallopian tube, and
the embryo is flushed out using a suction-irrigator. Obstetricians have
generally preferred salpingotomy over salpingectomy because it has been
thought that salpingotomy would better preserve the woman’s fertility,
though that intuition has not been born out in clinical studies.¹⁸ Meanwhile,
the direct physical connection between the intervention and the embryo’s
death has convinced some that the latter must be intended as part of the
former. Certainly, the connection to the embryo’s death is not as indirect as
it is in a salpingectomy.

Directness or indirectness, however, has no necessary bearing on whether
an effect is intended or not. Indeed, in the first philosophical treatment of

double effect, Thomas Aquinas argued that lethal force could sometimes be
used in self-defense. To us, the use of a sword to fend off an attacker has a
similarly direct connection to the resulting injury or death the attacker
suffers.

Moreover, it seems clear that the embryo’s death is generally not part of the
mother’s or the physicians’ proposals. Rather, their proposals are to
preserve the mother’s health and life by removing the embryo from a place
where it threatens grave danger to the mother. While the embryo’s death is
indeed an inevitable consequence, it is not needed as a means; presumably,
if the physicians could move the embryo to the uterus without harm, they
would. If that is true, as long as there is a proportionate reason to accept the
death of the embryo, as there seems clearly to be on the same grounds we
discussed with respect to salpingectomy, a salpingotomy is permissible.

Finally, there is the question of treating an ectopic pregnancy with the drug
methotrexate. This drug inhibits cell division in the trophoblast, which is
the precursor to the placenta. In an ectopic pregnancy, the trophoblast cells
burrow into the cells of the fallopian tube, as they would into the
endometrial lining of the uterus in a healthy pregnancy. By preventing cell
division in the trophoblast, methotrexate prevents the embryo from
remaining attached to the fallopian tube; without maintaining this
attachment, the embryo dies.

Again one can see why proponents of a less agent-centered account of
intention conclude that the use of methotrexate involves intentional killing:
the drug inhibits cell division not only in the trophoblast but also in the
embryo as a whole. Moreover, the trophoblast is part of the embryo, so it
seems again that the intervention directly attacks the embryo even if the
agent aims to affect only the trophoblast.

On the other hand, from the agent’s perspective, it seems that the aim is to
preserve the mother’s health and the means is detachment, which is
achieved by inhibiting the trophoblast cells specifically. The overall lethal
effect is not part of the proposal and thus not intended.

We may seem to be splitting hairs, but a question looms here that is hard to
settle: when an intended effect is part of a larger whole that is caused in

order to bring about the effect, is that whole itself intended? Elizabeth
Anscombe raised this question in relation to a case in which the Allies
bombed Dutch dikes to flood the Zeelands and thereby kill German
soldiers. Many Zeelanders were also killed, and the question Anscombe
raised is this: were they killed as side effects of an effort that targeted only
the Germans, or were the Germans killed as part of an effort to kill
everyone by means of the flooding? With respect to the use of methotrexate
for ectopic pregnancy, is the loss of cell division throughout the embryo a
side effect of an effort to block such division only in the trophoblast, or
does the agent intend to inhibit the cell division of the embryo as a whole in
order to inhibit cell division in the trophoblast? If the latter, the agent seems
to make the embryo’s death the means to the embryo’s detachment rather
than accepting it as a side effect of that detachment. Then the use of
methotrexate appears to be an instance of a chemical rather than a surgical
abortion.¹⁹

CONCLUSION

As we noted at the outset of this chapter, we cannot do justice here to all of
the arguments for and against abortion. Instead, we have aimed to show,
first, that abortion not only falls outside the proper scope of the medical
profession but that it contradicts that profession’s commitment to never
intentionally damage or destroy the life and health of any human being. In
addition, we gave reasons for thinking that a stronger conclusion is true:
that no one should ever intend the death of an unborn human being, nor
should they accept such a death as the foreseen side effect of unjustly
refusing to give aid to an unborn human being. Finally, we showed that the
rule of double effect is essential to practical reasoning about hard cases:
cases in which one or both of the lives of a mother and her child will be lost
in the absence of an intervention that itself has lethal effects.

This concludes our treatment of medical ethics at the beginning of life. We
turn now to the practice of medicine and medical ethics at life’s end.

CHAPTER EIGHT

Medicine at the End of Life

Now let’s return to the story of Abe Anderson and look further into that of
Nora Garcia.

Abe has been found to have advanced cancer.

Nora has suffered a devastating stroke.

In this chapter we will examine the ethical questions that arise in caring for
patients with advanced illness or those who are at the end of life. Most
clinical ethics consultations are called to address such questions, which is
natural enough, given the two kinds of limits we face. First, we face the
limits imposed by human mortality. Aging happens; health declines
irrevocably. The health that can be restored is less than it once was. Losses
abound; death looms. These limits raise this question: how does one
appropriately pursue health when health is irreversibly diminishing?

Second, we face the related limits of medicine. Medicine cannot reverse
aging. It cannot overcome the fact that all of us will die, relatively soon. So
medicine’s efforts become more strenuous and burdensome in exchange for
less substantial gains. More is wagered, but less is accomplished. Leon
Kass memorably wrote, “Health is a mortal good, and . . . we are fragile
beings that must snap sooner or later, medicine or no medicine. To keep the

strings in tune, not to stretch them out of shape attempting to make them
last forever, is the doctor’s primary and proper goal.”¹

Since the advent of the mechanical ventilator, however, physicians, patients,
and family members have come to experience the default pathway for dying
in American healthcare precisely as a process of being stretched out of
shape by life-sustaining technology in a vain attempt to postpone death as
long as possible. Unfortunately, out of otherwise reasonable desires that
death and the suffering that accompanies it not be unreasonably prolonged,
some have moved to embrace death itself as one of the ends of medicine, as
if destroying the instrument were the best means of tuning the strings.

What would it look like merely to keep the strings in tune or at least in such
tune as is available? And why is destroying the life of a patient not a
solution to the problem of the patient’s strings being stretched out of shape?
In this chapter we address the first of these questions, and in chapter 9 the
second.

SEEKING THE HEALTH THAT IS POSSIBLE

Abe Anderson and his wife undergo in vitro fertilization, and two years
later they are the proud parents of twin girls. One day Abe’s wife notices
that his eyes look yellow. Abe returns to his doctor. Radiographic imaging
reveals a tumor in his pancreas, with multiple lesions in his liver. A
procedure is done to place a stent in Abe’s bile duct, and biopsies confirm
what everyone fears: he has metastatic pancreatic cancer.

What should the doctor suggest in the face of Abe’s diagnosis? How should
Abe discern a reasonable way forward? We have proposed that the end of
medicine is health; what could it mean to pursue the health of a patient
whose disease is incurable? What health-related options are available to
someone in Abe’s tragic but not uncommon situation?

For simplicity’s sake, suppose that Abe’s physician believes she can present
Abe with two options. We want to ask, first, are these options genuinely
permissible for a doctor vocationally committed to health, and second, how
should Abe deliberate about these options practically?

Option 1 is to undergo a regimen of chemotherapy. Clinical studies indicate
that patients like Abe who receive this regimen live only a month longer, on
average, and many die sooner than they otherwise would have, but about
one in five patients survive at least a year. Major side effects of this regimen
include nausea, vomiting, fatigue, anemia, and immune suppression.

Option 2 is to focus on palliation—treating Abe’s pain and other symptoms
as they arise and working to sustain his remaining health and function using
interventions that are not particularly burdensome, but forgoing further
cancer-directed treatment. Often a palliative approach is structured under
hospice care. Clinical studies indicate that patients like Abe who choose
Option 2 will live about as long, on average, as those who receive
chemotherapy. However, almost all such patients die within a year.

Consider how this decision would be framed under the provider of services
model (PSM). First, physicians and patients would consider the universe of
options that are technically possible, permitted by current law and
professional standards, and available in the patient’s context. The
conventional approach would not hold these options up against a specific
end or norm, such as the patient’s health. The patient and the clinician
would thus not be accountable to an objective standard, although they
would still have resources for discernment. They could apply the four
principles of bioethics—autonomy, beneficence, nonmaleficence, and
justice. Alternatively, they could try to put the known benefits and harms of
the two approaches onto some kind of scale to determine which course of
action would bring about the greatest good for the greatest number, or at
least bring about the greatest good for Abe.

Under the PSM, the resolution of the matter ultimately defaults to the
patient’s wishes. No one but the patient, after all, is in a position to weigh
all of these considerations against the subjective norm of the patient’s well-
being—the state of affairs that the patient judges to be most desirable, that
most aligns with the way the patient authentically chooses to live. In this

light, Abe might reasonably choose Option 1 because it would maximize
the likelihood of his being alive in a year, a state of affairs he highly values,
and because it would align with his identity as a “fighter”—someone who is
not going to roll over and surrender to cancer. His physician might go along
because she believes that treating the cancer aligns with the principle of
beneficence and that doing what Abe requests respects his autonomy.

Abe might choose Option 2 because he believes it would maximize the
likelihood that he could avoid pain and other symptoms or at least they
could be adequately treated. Being without pain is another state of affairs he
highly values, ensuring that he would have a decent quality of life and
could continue for as long as possible to do the things that make him who
he is. His physician might support this approach because it seems to align
with the principle of nonmaleficence and, again, to honor Abe’s autonomy.
Either way, the goal is for Abe to make a choice that is free, informed, and
authentic to his self-perception. A choice that meets these criteria would be
made ethically, irrespective of what is chosen.

To summarize, under the PSM the physician offers the range of legally
permitted and medically available options, and the patient autonomously
chooses the options that comport with his or her own subjective sense of
well-being.

Interestingly, the Way of Medicine offers guidance that seems to overlap
considerably with the PSM approach, although crucial differences
distinguish the two. In the first place, options and choices that seem
unmotivated by anything other than conventional expectations and
subjective preferences under the PSM are given objective guidance in the
Way of Medicine. Second, the objective norms that practitioners of the Way
of Medicine apply here, where the two approaches overlap, result in very
different guidance further down the line when patients are reaching for last-
resort options.

THE PHYSICIAN’S OPTIONS

The Way of Medicine begins with health and with the physician’s
orientation toward the health that still can be preserved and restored in the
patient. Abe’s dire situation calls for some reminders about what health is
and what it is not; practitioners must not lose this orientation. Health is not
the absence of disease. If it were, the good of health would no longer be
available to Abe, and his physician would have nothing more to do. Nor is
health a matter of black-and-white. Clearly Abe’s health will be forever
diminished by pancreatic cancer; speaking colloquially, we might say that
Abe will never again be healthy. Yet much health remains for Abe, and until
his last breath he will enjoy some measure of it, however diminished and
unsatisfactory.

Further, health is complex in its dimensions. Abe’s physician rightly has in
mind Abe’s health as a whole organism, given our definition of health as
“the well-working of the whole.” But the complexity of the whole means
that different dimensions of health are at stake in clinical decisions, and
pursuit of one dimension often has adverse consequences for another
dimension. In addition, health is a basic human good but not the only or
even the highest good. As such, at the outset we know that ignoring health
or certain dimensions of health makes sense under some conditions. Abe’s
physician needs to be mindful of these conditions.

The threshold question for a physician—the one that sets out the universe of
options to consider—is which, among the technically feasible courses of
action, are those plausibly conducive to the patient’s health? In this
framework, Option 1, the regimen of chemotherapy, can reasonably be
offered only insofar as it aims at and has some probability of preserving or
restoring the patient’s health. Does it?

With Option 1, there is no clear answer. If the chemotherapy would increase
by only 1 percent Abe’s probability of living for one year, the answer would
more obviously be no. If it increased that probability to 50 percent, that
answer might obviously be yes. But in the case as it is, Abe’s physician
must make use of her prudential medical judgment: does this regimen offer
a sufficiently realistic possibility of benefit that pursuing it would not be
pointless? If Abe’s physician believes a regimen is pointless, she does her
patient no real service by offering the option. The offer would waste her

patient’s time, money, and energy and would subject him to other negative
effects.

We think Abe’s physician could reasonably judge Option 1 a live option in
terms of its potential health benefits, but what about its harms: anemia and
immune suppression, not to mention nausea, vomiting, and fatigue? How
can Abe’s physician reasonably inflict these harms on Abe? How can she
cause harm to Abe’s health without contradicting her profession, and what
would give her sufficient reason for doing so?

According to the Way of Medicine, the physician should never intentionally
harm or destroy Abe’s health. Certain options are simply off the table. But
the rule of double effect teaches that Abe and his physician might
reasonably accept injuries to health or other goods when those injuries are
foreseen but unintended side effects of pursuing Abe’s health. As such,
Option 1 could be reasonable from the physician’s standpoint insofar as the
anemia, nausea, and so on were not part of her intention. Some observers
would argue that we dissimulate here, that it is nonsense to say that the
physician does not intend the immune suppression, nausea, and so on when
she knows with certainty that such harms result from a course of
chemotherapy. But a good physician might administer Option 1 with the
intention of destroying cancer cells and thereby improving the patient’s
health, not intending to cause nausea or anemia. That the latter are not part
of the physician’s intention is made clear by the observation that, for
example, if the patient does not experience nausea, the physician would not
consider herself to have failed (although she might wonder whether the
drug was administered correctly).

What about Option 2? How could it be reasonable for a physician—whose
commitment is to her patient’s health—to offer or participate in a palliative
approach to illness that seems to be detached from the pursuit of Abe’s
health? How could it be reasonable to forgo treatments that might extend
Abe’s life or, in other cases, even cure the patient? How can one hold, as
does the Way of Medicine, that palliative medicine is oriented toward rather
than abandoning patients’ health?

Thinking of palliation as oriented to health can certainly seem strange. Isn’t
palliative care pursued, after all, precisely when health can no longer be

restored, as in Abe’s case? This way of thinking, however, misidentifies
health as the absence of disease. One cannot capture all the dimensions of
Abe’s health by focusing only on his cancer. Nor is health the only good
that Abe has in view. So while Abe might, as we will see below, reasonably
choose not to pursue aggressive treatment of his cancer—perhaps because
of commitments to other basic goods—his physician can still maintain a
commitment to his health in dimensions other than the fact of his cancer.
Put another way, palliative medicine is indeed good medicine for a patient
like Abe, as we will address in greater detail below.

Authority manifests in Abe’s situation as follows: Under the PSM, authority
is vested, in the guise of patient autonomy, almost exclusively in the patient.
Abe has the authority to choose among the universe of options that are
technically feasible, legal (and not prohibited by professional policy), and
available in his context. The physician’s authority is rather limited. She is
authorized to refuse interventions that are technically infeasible, illegal, or
unavailable, and she retains the authority to refuse interventions that are
futile in relation to the patient’s goals. For example, the physician might
refuse a chemotherapy regimen that clinical trials do not support. By habit
and residual convention, at least to this point, physicians also generally
retain the authority to refuse to participate in interventions that cause major
direct harm to their patients’ health, particularly when the prospects of a
proportionate health benefit are doubtful. If Abe begins to suffer severe
immune suppression, the physician might stop his chemotherapy regimen,
even if Abe wants to continue. Although this authority of refusal continues
at present as a matter of convention, such refusals may not make sense
within the PSM insofar as they suggest an objective standard for harms and
benefits that the framework denies. Physicians’ refusals appear rather to be
a holdover—one of many—from the Way of Medicine that will increasingly
come to seem an arbitrary imposition of the physician’s judgment regarding
what the patient should value.

In the Way of Medicine the physician retains the authority to decide which
courses of action sufficiently conduce to the patient’s health and thereby
cohere with the medical profession. Perhaps Abe has read about an
experimental treatment that his physician believes poses too much risk to
health with too little prospect of benefit. She exercises her authority justly

when she refuses to offer such treatment. Recall, however, that the Way of
Medicine does not limit physicians to one course of action that maximizes
health. Among the options plausibly conducive to the patient’s health, the
physician has good reason to recommend the one that she believes is best,
all things considered, while taking into account the patient’s input.
Typically no one “best” option is available, however, even in terms of
health outcomes, so the patient has the authority to decide among the
physician’s proposals. A physician can be both too accommodating,
cooperating in medical practices that are not congruent with her
commitment to health, and too scrupulous, mandating the course of action
that the physician believes is best rather than offering patients a choice
among reasonable options.

THE PATIENT’S OPTIONS

We can’t forget the patient’s perspective. How should Abe think of the
options his physician has presented? Our answer consolidates much that we
have already discussed and introduces two terms that help us to further
explain the Way of Medicine.

The starting point for Abe’s deliberations is that he should not intentionally
damage or destroy any basic good, including the good of life and health.
Any choice he makes among the options presented to him, however, will
result in some damage to the basic good of health. Option 1 risks an earlier
death and will cause Abe to suffer the negative side effects of
chemotherapy. Option 2 will forego the opportunity to potentially prolong
his life and advance his health, even if only temporarily.

In light of the information available to him, Abe must determine whether he
can reasonably pursue the associated benefits and accept the associated
burdens of these options. He must ask, in other words, whether the benefits
he would seek are proportionate to the burdens he must accept, or,
alternatively, whether the harms he would avoid are proportionate to the
benefits he must forego. This familiar practical scenario requires Abe to

apply the rule of double effect. If Abe chooses uprightly, the negative
consequences of his choices will always be side effects.

In making clinical choices, patients like Abe face burdens that extend
beyond negative effects on health, including losses of time and money, as
well as losses of other opportunities. The patient also may experience
emotional aversions and repugnances toward an intervention, if, for
example, it leads to hair loss, fatigue, incontinence, or impotence. Abe must
consider all of these factors as he weighs his options, but by what standard
is he to evaluate them?

The fitting standard in our view is his vocation. Abe is a husband and a
parent of two small girls. His life situation is considerably different from,
say, that of Mrs. Garcia, an elderly woman whose situation we consider
later in the chapter. Abe has work obligations and debts. Perhaps he is
alienated from certain friends or family members. Maybe he is a religious
man, or perhaps he has let his religious life drift and feels estranged from
God. All these considerations must be brought to bear on his options to
determine which best fit his range of vocational commitments and
responsibilities.

Sometimes a patient will judge all of the treatment options compatible with
his or her station in life. In that case, in a sense, not much hangs on the
patient’s choice. But in many cases, some treatment options are ruled out as
incompatible with the patient’s vocation. Abe might, for example, judge
that for him the benefits of Option 1 are simply not proportionate to its
burdens. If so, we could say, using language traditional to the Way of
Medicine, that for him Option 1 is extraordinary. Those options that he
judges acceptable, in contrast, we can call ordinary. An extraordinary
treatment should not be chosen; an ordinary treatment may be and
sometimes must be chosen—if, for example, it is required by his vocation.

Some proponents of the Way of Medicine might object that our view here
seems like a version of the PSM, with its emphasis on patient choice, well-
being, and authenticity. We disagree. Although patient vocation is a relative
standard, it is not subjective. Presuming that he is clear-thinking and
reasonable, Abe uniquely understands his own vocation, and he forms his
judgments of what is ordinary and extraordinary in relation to that vocation.

Moreover, judging in accordance with one’s vocation is judging
authentically and autonomously, but Abe’s judging autonomously is not
sufficient for moral rightness, for Abe can judge wrongly that some option
is consistent with, called for by, or incompatible with his vocation.

Consider, for example, that the palliative option offers him the most quality
time with his family and the clearest mind with which to face his impending
death. Perhaps it will also be too financially and emotionally taxing for his
young family to accompany Abe on the path of chemotherapy, especially
when the benefits are so tenuous. So let us suppose that Abe, consistent
with his vocation, chooses the palliative care option. Making such a choice
requires some real virtues: wisdom, to recognize that it is the right choice,
and courage, to face the hard truth that he will likely be dead within a short
period of time. Virtue being always in short supply, Abe will face abundant
temptations to choose something that (we are stipulating) offers only a false
hope and only the appearance of fighting. That Abe has the authority to
make such a choice does not make his choice right. Even here, despite
apparent similarities, the Way of Medicine differs fundamentally from the
PSM.

THE RELIEF OF SUFFERING

Before going further, let’s return to a question raised by Option 2, the
prospect of a palliative approach to Abe’s illness. Palliative medicine treats
pain and other symptoms, thereby reducing suffering. What does reducing
suffering have to do with medicine—that is, with the patient’s health?

As mentioned earlier, by forgoing medical interventions that are
burdensome and time-consuming, a palliative approach leaves more room
for a patient to pursue other worthy goods—whether work, play, worship,
or simply putting one’s affairs in order before dying. In this sense, a
palliative approach is justified insofar as it avoids the mistake of treating
health as if it were the only or the highest good. Palliative medicine goes
further, of course, by treating pain and other causes of suffering.

But this key objection remains: the notion that palliative medicine aims at
health seems counterintuitive, because it seems that we deploy palliative
medicine when health can no longer be restored, when diseases are
incurable. This intuitive way of thinking, we propose, misunderstands
health as well as the practices of palliative medicine. Again, health is not
merely the absence of disease. It is, as Leon Kass put it, the “well-working
of the organism as a whole,” manifest in the activity of the body “in
accordance with its specific excellences.” Kass pointed to a squirrel to
illustrate health. A squirrel’s health is displayed in its characteristic
activities of well-working, such as burying nuts, chattering, and climbing
trees. The characteristic activities of humans are more varied, of course, and
so therefore are their expressions of health, but such expressions certainly
include the capacity to eat and digest food without vomiting it up, to move
one’s bowels, to sit or lie or walk without wracking pain, and to stay awake
and fall asleep at the proper times. Palliative medicine cannot return Abe to
the state of health he had before his diagnosis, but if it helps him go from a
state of nausea, constipation, insomnia, and wracking pain to one in which
he is able to tolerate food, move his bowels, sleep six hours at night, and
move around free of debilitating pain, palliative medicine will have
contributed to Abe’s health. These sorts of contributions to health make it
possible for Abe to pursue other goods still available to him.

Here the distinction between the PSM and the Way of Medicine begins to
have practical and not just theoretical consequences. Palliating disabling
symptoms with an eye to preserving and restoring a measure of health
differs fundamentally from palliating symptoms without respect to whether
doing so will restore health. Physicians should respect this distinction,
embracing the former practices of palliation and resisting the latter.

The PSM, however, treats this distinction as clinically and ethically
insignificant, urging pursuit only of that state of affairs that the patient
values or desires. By this standard, only coldhearted and unreasonable
doctors would refuse interventions that would end a patient’s suffering
simply because those interventions might contradict medicine’s traditional
orientation to health. What good does this narrow focus on health do for a
patient dying of cancer?

In the environment of the PSM, “palliative care” has come to be cast as a
broader, more holistic, more comprehensive form of professionalized care
than mere medicine can offer. In effect, rather than being an essential
practice within medicine, palliative care becomes an alternative and rival to
medicine, with more expansive goals. For example, the World Health
Organization defines “palliative care” as “an approach that improves the
quality of life of patients and their families facing the problems associated
with life-threatening illness through the prevention and relief of suffering
by means of early identification and impeccable assessment and treatment
of pain and other problems, physical, psychosocial, and spiritual.”²

This formulation gives palliative care a seemingly boundless scope of
activity. What problems, after all, are excluded from the categories of
physical, psychosocial, and spiritual? In this formulation, the goal is not
restoring health per se, but rather relieving suffering and improving a
patient’s quality of life. That goal is to be achieved through assessment and
treatment—concepts that resonate with the vocabulary of medicine—yet
neither suffering nor quality of life is necessarily related to health.

When efforts to relieve suffering and improve quality of life become
unhinged from the goals of preserving and restoring health, palliative
practitioners begin to see all forms of suffering as conditions that call for
treatment, including existential suffering. Furthermore, because palliative
care is committed to maximizing patient control, and because only the
sufferer can authoritatively assess suffering and quality of life, palliative
care practitioners trade clinical judgment oriented to the patient’s health for
the direction given by patient preferences. Indeed, palliative professionals
are often encouraged to relieve conditions on the basis of the patient’s
considering the condition “unacceptable” or “intolerable,” setting aside the
physician’s judgment regarding how the condition or its treatment is health-
related.³

Ultimately, in order to minimize suffering and maximize quality of life, and
to do so according to patients’ values, physicians come to consider death
itself, albeit a “good death,” as one of their goals. The National Hospice and
Palliative Care Organization describes “hospice” as follows: “Hospice
affirms the concept of palliative care as an intensive program that enhances

comfort and promotes the quality of life for individuals and their families.
When cure is no longer possible, hospice recognizes that a peaceful and
comfortable death is an essential goal of health care.”⁴ In this formulation,
palliative care shifts from relieving disabling symptoms so that patients can
live as well as possible in the face of death to treating unwanted symptoms
so that patients can die comfortably. It shifts from helping patients who are
dying to helping patients to die.

No wonder that recent years have witnessed a groundswell of support for
“last-resort options” in palliative care, including physicians’ helping their
patients to die via suicide and euthanasia. These last-resort options are the
focus of chapter 9.

THE LOSS OF DECISION-MAKING CAPACITY

Nora Garcia is an eighty-year-old woman with a history of diabetes, high
blood pressure, and coronary artery disease. At the encouragement of her
geriatrician, Mrs. Garcia wrote a living will in which she stated that if she
were in an irreversible coma, she would not want to be kept alive. She also
told her physician in a conversation that he documented that she never
wanted to be stuck on a breathing machine. “Just let me go,” she said. One
day Mrs. Garcia develops a fever, chills, cough, breathlessness, and
confusion. By the time an ambulance delivers her to the local emergency
room, she is found to be on the brink of respiratory failure from pneumonia.

Mrs. Garcia’s case brings to light the common phenomenon of patients who
are not able to make medical decisions for themselves. Young children do
not have the capacity to make their own medical decisions, and even older
children, for the most part, lack authority under the law to make medical
decisions. Adults, however, are expected to be self-determining, and as
people age many fear that they will be treated in ways they do not want—
either receiving more medical interventions than they desire in the default

pathway for technological medicine or receiving less medical support than
they believe they deserve. In his best-selling book Being Mortal, physician-
author Atul Gawande lamented the fact that despite handwringing all
around, patients continue to suffer and die in ways that depart from what
they say they would want, and contemporary medicine bears much of the
blame.⁵

The problem is not that patients are receiving medical interventions that
they actively refuse. Rather, the default pathway moves people inexorably
toward life-sustaining technology that, when people are in better health,
many would not imagine wanting. When people lose the capacity to make
decisions for themselves, they often remain on that default pathway,
continuing to receive interventions that they did not desire when healthy,
and still would not desire.

The PSM has sought to address this problem by shoring up patients’
autonomy, ensuring that medical care at the end of life accords more fully
with patients’ wishes. The primary mechanism for bolstering patients’
autonomy, and the one that has received the most public attention and
encouragement, is advance directives. Advance directives permit patients to
specify, in writing, what kinds of medical treatment they would want if they
were to suffer injuries or other health losses in the future. A living will
(which Mrs. Garcia had) sets out in writing what kind of medical treatments
one would want. Increasingly, physician orders for life-sustaining treatment
(POLST) are used to specify these wishes and give them authority within
health care. A durable power of attorney for health care (DPOAHC)
specifies who is authorized to make health care decisions for the patient if
the patient cannot make decisions for himself. Different advance directives
carry different levels of legal authority, depending partly on where the
patient lives, but all of them become active when a patient loses decisional
capacity. In theory, advance directives ensure that patients’ autonomy is
respected when patients cannot exercise that autonomy. In practice, advance
directives help to mitigate the pattern that Gawande and others have
observed, in which patients who lose decisional capacity cannot get off the
train that leads to unwanted and unhelpful medical interventions.

A number of criticisms have been raised regarding advance directives. The
first is that they do not genuinely protect or further autonomy. Mrs. Garcia,
when she wrote her living will, could not have anticipated the particular
situation in which she is now, and now that she is in this situation, she does
not have any autonomy. She still deserves respect, but her autonomy cannot
command our respect when her illness has removed that autonomy.

The emergency room physicians face an urgent question: should they
intubate Ms. Garcia to support her breathing while they give her fluids,
antibiotics, and other ministrations in hopes of restoring her to the health
she had before this infection? Or should they forgo the ventilator in light of
her statement that she would not want to be kept alive on a breathing
machine, knowing that without the ventilator she likely will not survive the
next twenty-four hours?

The PSM emphasizes the subjective norm: what would she have wanted?
The problem is that her physicians cannot know, because Mrs. Garcia
herself could not know, what she would want in this particular situation.
She certainly didn’t envisage this scenario when she wrote her living will.
With an unclear advance directive—and most living wills are similarly
unclear—physicians typically turn to duly authorized surrogate decision-
makers. While we address surrogates in a moment, let’s assume at this point
in the story that no such surrogates are available. In the conventional
approach, in light of uncertainty about what the patient would have wanted,
the physicians might do what most people want them to do in such cases—
that is, what people who have the capacity to choose typically choose: they
would intubate Mrs. Garcia to see if they could turn her illness around.
Such decisions are sometimes justified on the grounds that they restore the
patient to a state in which she can make a more considered, authentically
autonomous, choice. Dying, of course, cuts off all possibilities of future
autonomy.

On the Way of Medicine, Mrs. Garcia’s physicians have good reason to act
expeditiously to maintain the health that can be preserved using reasonable
means. This aligns with the constitutive purpose of medicine—a
predisposition to preserve health when possible. This disposition reasonably
accepts that health is a basic good for an eightyyear-old, just as for a

twenty-five-year-old; age can limit what health is possible but not the
goodness of health itself.

As we have stressed, health is not the only good, and actions available to
restore health have limits. Therefore, physicians need not do everything
possible to keep Mrs. Garcia alive, as if there were no other goods at stake,
and they need not do anything that is clearly either excessively burdensome
or unlikely to preserve or restore a significant measure of health. These
judgments are always context-dependent and require the physicians’
prudence. What would be reasonable in an average US city may not be
reasonable in a remote part of a developing country. And age matters
insofar as the health of an eighty-year-old is more tenuous and attenuated,
all else being equal, than that of a twenty-five-year-old.

We are not claiming that patients lose the authority to refuse medical
interventions—even those interventions that have great promise for
restoring health. If Mrs. Garcia had stated clearly that she was never to be
intubated, period, her physicians should decline to intubate her as a matter
of respect for the patient’s authority to make such decisions prospectively;
her decision-making authority can be respected, even if she has no
autonomy to respect. The patient’s authority is all the more in view if he or
she has taken some legal step to give that refusal force and indicate that the
decision is a considered one.

Because patients cannot anticipate every contingency, however, living wills
are generally less useful than are DPOAHCs. Unlike living wills,
DPOAHCs allow a patient to delegate authority for future decision-making
to a person the patient trusts. Even if the objective is to secure decisions that
the patient would have made if she were able to make them for herself, the
DPOAHC is preferable insofar as the patient can have in-depth discussions
with her authorized surrogate and give the surrogate the flexibility to fit a
future decision to the complexity of the patient’s story and the details of the
specific clinical situation. In any case, if an advance directive does not
unambiguously address the clinical question at stake, physicians are taught
to use the second procedural mechanism: surrogate decision-makers.

SURROGATE DECISION-MAKING

The physicians intubate Nora Garcia. After a rocky course of three days,
she is taken off the ventilator. She is very weak but improving slowly. The
next morning, she is found unresponsive in bed. An urgent CT scan of her
head finds a large hemorrhagic stroke. The doctors go to Mrs. Garcia’s
three grown children, who have now gathered, in order to have an urgent
family conference and decide what to do next.

When a patient is incapacitated, someone must have the authority to make
medical decisions for her. It seems reasonable that such authority resides
with the one to whom the patient has explicitly granted it if the patient has a
durable power of attorney for healthcare or, in the absence of such explicit
declaration, to those closest to the patient: her spouse, adult children, and so
on. But what standard should these surrogate decision-makers use in
exercising their authority on Mrs. Garcia’s behalf?

With its singular emphasis on patient autonomy, the PSM has come to
affirm what is called the substituted judgment standard. Out of respect for
patient autonomy, physicians are taught to approach the legal surrogate or
surrogates—in this case, Mrs. Garcia’s children—to explain the situation
accurately, including the options that are technically feasible, legal, and
available, and to encourage the surrogates to make the choice that the
patient would make if she were able to choose. The physician might say,
“The question is not what you think is best or what we might think is best.
The question is this: what would she have wanted?”

The substituted judgment standard has several problems. First, substituted
judgment, in such cases, seems to sustain a façade of respecting autonomy
that both hides and distracts clinicians and surrogates away from the actual
question faced: all things considered, what is a fitting way to care for this
patient? One cannot respect what does not exist, and Mrs. Garcia does not
possess autonomy in her state. Rather, she is utterly dependent on those
who would care for her. Moreover, to divine what she would have chosen if

she could have chosen for herself is an exercise fraught with uncertainty.
Researchers have found that close family members, including spouses, are
notoriously inaccurate in predicting what their loved ones would want in
prospective clinical situations.⁶

A final problem with the substituted judgment standard is that it divests
physicians of a responsibility that they are obligated to exercise. Because of
the subjectivity of what the patient would have chosen if she could have
chosen for herself, the substituted judgment standard puts physicians in a
passive role of merely giving information and options, deferring to the
surrogates to make an informed choice. The physicians’ primary aim as
healthcare professionals, however, is not to find what the patient would
choose if she could do so. Rather, the physicians’ aim is to find a way to
preserve and restore the health of the patient that still can be reasonably
preserved or restored and to do so in a way that respects the patient’s
authority to give consent only to those proposals that fit her vocation.

Although the patient’s authority has moved to surrogate decisionmakers, the
physicians ought not assume a passive posture. They should listen to and
consider the surrogates’ statements about the patient’s vocation—how she
lived, what her obligations are, what she loved, what they think she would
encourage them to choose if she could—and, as we will see, the surrogates’
statements about their own vocations. The physicians listen in order to
propose courses of action that they believe align with the patient’s health
and vocation in light of this information.

The physicians should not by default encourage the family to “do
everything.” Indeed, in many cases the physicians can state, as the
Hippocratic tradition suggested long ago,⁷ that medicine has little left to
offer other than solidarity and basic care. Health is a good that cannot be
preserved forever, and in Mrs. Garcia’s representative case, the patient’s
surrogates might reasonably focus on other goods. The primary point is that
when a patient cannot exercise her authority to give consent for medical
interventions, that authority shifts to the patient’s surrogates, but the
structure of the physician’s discernment remains the same: the goal is to
find a course of action that aligns with the physicians’ orientation to the

patient’s health while remaining open to other basic human goods and the
relevant truths about the patient’s vocation.

Yet another question arises here: whose vocation is to guide the
surrogate(s)’ decision-making? The answer is that the surrogates’ vocations
now provide the relevant standard. Thus our view not only differs sharply
from the substituted judgment standard but also differs somewhat from the
best-interest standard. According to the latter, surrogates should judge and
act in accordance with what is objectively best (often identified as in the
“medical best interest”) for the patient. That standard is superior to the
substituted judgment standard insofar as it reflects the truth that surrogate
decision-makers are charged to care for the ill and incapacitated patient,
making the patient’s welfare central to their consideration.

But surrogates have other concerns and other vocational commitments.
They may have children or spouses who depend on them. They may have
jobs to do and bills to pay. Surrogates can’t abandon these. Accordingly, the
terms discussed earlier—extraordinary and ordinary burdens and treatments
—become apt for the surrogates’ consideration. They are faced with options
whose benefits and burdens bear not only on the patient but also on the
surrogates themselves. Which interventions are ordinary and which are
extraordinary now has to be determined in light of the surrogates’ vocations
—vocations that include but are not limited to obligations to care for the
loved one in question.

INTENTION AND PROPORTIONALITY: A CASE STUDY

Abe Anderson opts for chemotherapy, planning to receive an infusion
biweekly for three months. Six weeks into this plan, repeat radiographic
imaging reveals that his tumors have grown despite treatment. Meanwhile,
he has lost thirty pounds and is starting to have severe abdominal and back
pain. Vicodin no longer relieves the pain, and Abe’s doctor recommends
scheduled doses of morphine. Abe’s wife worries about his being sedated
and about addiction to opioids.

How can Abe’s physician reasonably prescribe morphine in this case, when
she knows that doing so likely will lead to her patient’s physiological
dependence on morphine? Once again, we must advert to the rule of double
effect. Administering morphine has good effects—relief of pain—and bad
effects: constipation, sedation, dependence, and more. What makes the
physician’s action reasonable, according to that rule, is that she intends only
the good effects—in this case, the relief of Abe’s health-diminishing pain—
and that proportionality rests between the expected goods and harms. This
judgment of proportionality is not a matter of looking for one choice that
maximizes the net goods; no such choice can be known due to the goods’
incommensurability. It is a matter of considering the gravity of the goods
and harms at stake.

For example, if Mr. Anderson’s pain were minor, the physician would have
less reason to administer morphine. Proportionality also governs dosing:
physicians need not be squeamish about giving adequate pain relief, but
they are prevented from giving dosages that far exceed what one might
reasonably expect to relieve Mr. Anderson’s pain.

In this case, however, Abe’s pain is serious. Given that he has relatively
little time left to live, the risk of dependency does not seem as significant as
it might otherwise. So it seems reasonable to prescribe him morphine to
address his pain, provided that the side effects of constipation and sedation
are acceptable to him.

Over the next two weeks, Abe Anderson grows steadily weaker and sleepier,
often remaining in a state of somnolence. His wife wonders if the doctors
are overmedicating him.

Mrs. Anderson’s question points to the difference the Way of Medicine
makes. In the PSM, her concern prompts a question: what does Mr.
Anderson really want, or what would he choose if he could choose for

himself? If Abe’s current experience suggests that the morphine dosing is
not hitting the right balance, his doctors can adjust the medication
according to his desires. In the PSM, whether the physicians are disposed to
increase or decrease the dosing in this case depends entirely on the patient’s
wishes. Indeed, family members often ask that medication doses be
increased to preclude any possibility of the patient’s suffering.

The Way of Medicine, in contrast, returns once more to the norm of Mr.
Anderson’s health, with the rule of double effect helping the physicians stay
on track. Is the morphine achieving the relief of health-diminishing pain,
and is it doing so in a way that is proportionate to the adverse side effects?
Can the former be achieved in a way that does not bring as much of the
latter? These questions require the physicians’ clinical judgment, which
changes when circumstances change. For example, the effects of sedation
that seemed minor when accepted as a consequence of relieving severe pain
may seem more consequential when they are the consequence of moving
from adequately relieved to completely relieved pain. Accepting some level
of discomfort might be reasonable in order for Abe to maintain some degree
of consciousness, if doing so allows him to interact with his family and to
prepare himself for death. On the other hand, the sedation that was a heavy
burden when it kept Mr. Anderson from putting his affairs in order may
become a minor burden when he is actively dying.

Critically, Abe’s physician rightly limits herself to those actions that are
congruent with her commitment to her patient’s health. She would be
reticent, for example, to push the morphine dose high enough to render Mr.
Anderson unconscious, even though by so doing she could prevent any
further suffering. But she would also be reticent to watch her patient writhe
in agony while abstemiously titrating up the dosing in tiny intervals out of
concern for going too high. Finding the right practice here requires
judgment, which is gained through long years of experience in pursuing
patients’ health while respecting the requirements of practical reason.

Nora Garcia’s children were conflicted when her physicians asked them to
decide whether she should be intubated or not. In the context of their
uncertainty, the physicians intubated Mrs. Garcia. Three weeks later, she

coughs when her airway is suctioned, but she still has not recovered enough
to respond meaningfully to voice or touch. She receives ventilator support
via a tracheostomy and nutrition via a feeding tube inserted through her
abdominal wall. At this point, her three children together come to the
physicians, saying, “We had hoped she would recover, but she has not. She
would never have wanted to continue like this.” The children ask that the
ventilator be discontinued. “Just keep her comfortable,” they say.

In the PSM, the physician’s obligations in regard to removing the ventilator
are straightforward. The law allows life-sustaining technology to be
discontinued; the duly appointed surrogates are requesting that it be
discontinued; and, moreover, they are doing so according to the substituted
judgment standard—they are making the request that they believe Mrs.
Garcia would make if she were able. To make sure the surrogates’ choice is
informed, the physicians should tell the surrogates what they expect will
happen as a result of discontinuing the ventilator, but then the physicians
must do what is requested.

An additional issue arises: how to keep Mrs. Garcia comfortable when and
after the ventilator is removed. Should narcotics and sedatives be given
prospectively to reduce the chance that she will experience breathlessness
and subsequent distress in the short time she is expected to live after life
support is withdrawn? If so, what norms guide the dosing of such
medications? Again, the answer is easy in the PSM: the norm is to
minimize suffering and maximize quality of life according to the wishes of
the patient or her surrogates. Therefore, after explaining to the family how
the drugs work, the physicians are obligated to give a dosage that meets the
family’s expectations for their loved one’s comfort. That dosage may be
quite disproportionate to the discomfort the physicians expect their patient
to experience if the surrogate decision-makers’ primary concern is
minimizing the possibility of any suffering.

Here the PSM and the Way of Medicine again overlap somewhat, despite
their different starting points. In the Way of Medicine, the first question is
how can removal of the ventilator be consistent with the physician’s

commitment to the patient’s health? The second is how is removal of the
ventilator consistent with the requirements of practical reason?

Mrs. Garcia’s physicians are confident that she will die shortly after the
ventilator is removed. How can anyone, much less a physician, remove the
ventilator knowing that the patient will die as a result? Once more, guidance
comes from the rule of double effect. The physician’s commitment is to
seek to preserve and restore his patient’s health using reasonable means,
insofar as the patient grants the physician the authority to do so. Keeping
Mrs. Garcia on the ventilator provides at least a modicum of her health
insofar as it maintains her life, and maintaining her life allows for further
steps to be taken to improve her health, even if such steps do not hold much
promise in her case. Thus keeping Mrs. Garcia on the ventilator can be
reasonable as medicine.

But the ventilator’s contribution to Mrs. Garcia’s health, while real, is also
relatively minor. In her case, use of the ventilator does not make possible
further interventions to recover her lost health. Indeed, while medical
technology can keep her alive indefinitely, little to no prospect remains for
further healing. Moreover, the ventilator brings significant burdens: it is
expensive; it requires Mrs. Garcia to stay in an intensive care unit; and it is
relatively intrusive to her body, obstructing certain natural pathways of
human interaction between her caregivers and her.

While Mrs. Garcia’s physicians have some reason to maintain ventilator
support, they should also respect the health-related limits of doing so, and
the fact that her surrogates might reasonably judge that the burdens of
continuing ventilator support are disproportionate to the benefits. Those
surrogates can consistently treat Mrs. Garcia’s life and health as goods
while also judging that the ventilator should be removed in order to avoid
the burdens associated with it—expense, intrusiveness, and so on. They can
and should make that judgment in light of their own vocational
commitments, which might include honoring what they believe their mother
would have wanted—to end her days in the personal company of her loved
ones rather than in the impersonal company of machines.

In choosing to discontinue the ventilator, neither the surrogates nor the
physicians need to aim at the patient’s death. The surrogates can choose to

avoid certain burdens and to pursue a certain kind of human and personal
environment for their remaining time with Mrs. Garcia, aware that death
will likely be hastened as a side effect of seeking those benefits (including
avoiding those burdens). The physicians can accommodate the surrogates’
choice either because they share their intentions or if for some reason they
disagree with the surrogates’ judgment, because they intend to honor the
surrogates’ legitimate authority. In neither case do the physicians intend
Mrs. Garcia’s death either as a means or as an end. The surrogates and the
physicians can act reasonably here in discontinuing the use of Mrs. Garcia’s
ventilator.

Of course, different circumstances would affect our judgment. Imagine, for
example, that with two weeks more mechanical ventilation, Mrs. Garcia
would likely return to the health she enjoyed before she fell ill. Then the
burdens of mechanical ventilation for two weeks would not appear
disproportionate to its anticipated benefits. The ventilator would be seen as
ordinary treatment, and discontinuing it would be unethical. But even these
judgments depend on considerations over which the surrogates have
authority. The Way of Medicine respects that authority, allowing the
physician to cooperate with an action that the physician would not choose
herself.

Furthermore, what is true of the physicians relative to the surrogates is true
of both relative to the patient. If Mrs. Garcia were to recover decisional
capacity, she would have authority to ask that the ventilator be discontinued
even if it was thought that only two weeks more of ventilation were needed
to bridge her movement to a promising new treatment. That decision might
be wrongful, and her family and physicians should voice their concerns, but
the competent patient’s authority to refuse medical interventions is almost
absolute. Surrogates and physicians can intend to honor that authority while
accepting as side effects the consequences of a patient’s wrongful choice.

Surrogates’ authority is more constrained than patients’ authority.
Traditionally, surrogates’ decisions have been required to meet what has
been called a reasonable person standard. If a surrogate makes a request that
no reasonable person would choose (for example, removal of a ventilator
right after a major surgery, before the patient has had a chance for

anesthesia to wear off), the request will exceed the surrogates’ authority and
physicians may refuse it.

Let’s now return to the question of Mrs. Garcia’s comfort when the
ventilator is withdrawn. The physicians’ goals must remain tethered to the
norm of the patient’s health and subject to the questions of intention and
proportionality. That the patient will die soon does not justify setting these
considerations aside, though neither does the physicians’ commitment to
health mean that they must be tentative in administering medications to
relieve breathlessness. Patients who die of respiratory failure often appear
to experience profound distress from breathlessness, gasping for air as if
drowning. Such a state is not one of health. Relieving such a state would
seem to be an act required of healthcare professionals.

So a physician administers medication to mitigate breathlessness. Here we
note a story from the clinical experience of one of the authors. Dr. Curlin
was caring for a patient on a general medical service during training. The
patient, an elderly woman, had suffered a devastating stroke, very much like
the one Mrs. Garcia suffered, but instead of placing a tracheostomy, the
family asked that the ventilator be withdrawn, recognizing that the patient
would die. The patient was moved to a private room on the general medical
floor, where her family could be present while the ventilator was
withdrawn. When evaluating the patient, Dr. Curlin observed no
spontaneous respirations and no response to painful stimuli. He asked the
nurse to have a couple of doses of morphine available should the patient
appear to be suffering breathlessness or distress as she died. After the
ventilator was withdrawn, the patient did not breathe for more than a
minute. Then she began to gasp. She grimaced, and sweat broke out on her
brow. Her chest heaved, as if she was struggling to breathe but could not.
Dr. Curlin called for the morphine to be administered, but in the five
minutes it took for the nurse to access the IV and deliver the medication, the
patient had died.

This was poor medicine. Dr. Curlin should have anticipated the possibility,
even probability, that the patient would have a residual drive to breathe.
Knowing that she would likely not be able to breathe sufficiently to survive,
he should have given a dose of medication in advance that would have

relieved her air hunger, and then had medicine available to be administered
immediately, titrated to signs of such distress. Such an act would have been
medicine truly in service of mercy. An important part of the physician’s
vocational commitment is to be concerned with patient health even in life’s
final moments, and the relief of breathlessness when a ventilator has been
removed is a genuine manifestation of this commitment.

Poor medicine can also involve setting aside proportionality or embracing
impermissible intentions. Physicians sometimes start a morphine infusion
simply because a patient is expected to die, and then the infusion is titrated
for no reason other than that the patient has not died yet. To give an
example, palliative medicine colleagues of Dr. Curlin once were asked to
see a patient in the ICU who had not recovered from a major surgery. The
family asked that life-sustaining technology be withdrawn. The palliative
medicine team left recommendations for medication to relieve distress, with
dosing proportionate to what they expected would be needed. They returned
hours later to find the patient profoundly sedated on doses of narcotics and
sedatives much higher than they had recommended. When they asked about
such high dosing, the surgical team said that the family was distressed that
it was taking so long for the patient to die. This case and others like it
demonstrate physicians detaching from the norm of the patient’s health,
instead beginning to aim at the patient’s death. When medication dosing
becomes disproportionate to what is needed to relieve disabling symptoms,
something has gone wrong.

Unfortunately, the PSM conditions physicians to ignore, or even to
welcome, these departures from proportionality and an orientation to the
patient’s health. After all, the point of the PSM is to relieve, using the tools
at hand, the conditions that the patient or her surrogate suffers. When being
alive comes to be experienced as a burden, the physician’s tools can quickly
become death-dealing, opening the patient up to the expanding domain of
so-called last-resort options.

CHAPTER NINE

Last-Resort Options

In this chapter we meet patients who are not only at the end of life but
seemingly at the end of hope. What should physicians do when patients are
dying and have nothing left to look forward to except pain and misery? We
have already established that physicians have good reasons to treat pain and
other symptoms effectively, and at times to accept substantial side effects of
such treatment, including even the effect of hastening death. But some
patients want more. They want to die on their own terms, not wait for their
illnesses to bring about their death in unwanted ways. In particular, they
experience a state of profound and irreversible debility and dependence as
one that is worse than being dead. What can be done for such patients?

In the provider of services model (PSM), physicians facing such cases are
urged to consider what their proponents call “last-resort options” for
palliative care. These include encouraging the patient to voluntarily stop
eating and drinking, administering palliative sedation to unconsciousness,
and, most prominently, offering assisted suicide and euthanasia. What
makes all of these practices controversial is the question of intention: is the
patient’s death intended in these practices? If so, on the Way of Medicine,
such practices are ruled out from the start.

Not so under the PSM. Rather, clinicians pursue the goals of minimizing
suffering and maximizing quality of life without any absolute prohibitions,
not even the prohibition against killing one’s patient. At the time of this
writing, assisted suicide and euthanasia remain illegal in most US
jurisdictions; for the moment, in most jurisdictions such practices are not in
the universe of options that physicians must offer patients. But when that
changes—as it has changed in several US states, all of Canada, and several

European nations—the PSM not only permits assisted suicide and
euthanasia; it can require physicians to accommodate patients’ requests for
these options, at least by referring them to someone who will provide them.
The PSM approach centers on its commitment to use medical technologies
to bring about well-being. After all, how can a patient be said to have well-
being if he lives when he wants to die, particularly when he obviously
suffers a degraded and steadily diminishing quality of life?

When the goal of medicine shifts from helping patients who are dying to
helping patients to die, practices that hasten death no longer seem like last-
resort options. Indeed, such practices seem to follow ineluctably from
making the relief of suffering—an alternate formulation of well-being—
medicine’s first principle. Medicine aims to minimize suffering and
maximize quality of life according to the patient’s judgment and values.
The patient is suffering and experiences a poor quality of life. The clinician
has the tools to make the suffering go away by making the condition of
being alive and conscious—which makes suffering possible—go away.
Although intentionally bringing about the patient’s death would seem to
contradict the goal of preserving and restoring health, medicine is no longer
constrained by such goals. Therefore, the clinician may, and is perhaps
morally obligated to, offer the patient various means by which the patient
can bring about the end of his life.

Before we get too far ahead of ourselves in discussing “last-resort options,”
let’s consider cases that involve continuing or withdrawing nutrition and
hydration. How would the Way of Medicine approach these practices?

ARTIFICIAL NUTRITION AND HYDRATION

Nora Garcia is moved to a private room for her use of the ventilator to be
discontinued. When that is done, despite the physicians’ expectations, Mrs.
Garcia breathes on her own, so a few days after that she is moved to a long-
term nursing facility. Six weeks later she has developed a bedsore but is

otherwise clinically stable. Her family now asks that tube feeding be
discontinued.

The laws of most nations allow tube feeding, or artificial nutrition and
hydration (ANH) to be discontinued at the request of a patient or the
patient’s surrogates. The reasonable-person standard applies to the latter,
but that standard would allow physicians to remove the feeding tube in Mrs.
Garcia’s case, just as many otherwise reasonable persons elect to
discontinue tube feeding in similar cases.

According to the PSM, the physician’s obligation here is straightforward:
inform the surrogates of what can be expected with continuing or
discontinuing the tube feedings, ask them to imagine what Mrs. Garcia
would choose if she could, and then accommodate the surrogates’ choice. In
such situations, surrogates and clinicians often talk about choosing quality
of life and comfort over degradation and suffering. They might talk about
allowing the patient to die with dignity. The application of such concepts,
along with the four principles guiding the practice of medicine (autonomy,
beneficence, nonmaleficence, and justice), tends to hinge on the ideal of
authentic choice: choosing what the patient would have chosen if she were
able.

Thus, for example, if the surrogates say that Mrs. Garcia would never have
wanted to live like this, they or Mrs. Garcia’s physicians might conclude
that continuing the tube feeding violates the duty not to harm because it
forces her to endure a degraded condition, or poor quality of life. If,
alternatively, the surrogates decide that the patient would have chosen to
continue the tube feeding (believing, perhaps, “She would have wanted
everything done”), discontinuing the feeding would seem to violate the
same duty not to harm, or at least fail to fulfill the principle of beneficence
by withholding something from which the patient benefits. Again,
everything turns on what the patient would have wanted.

Of course, when the patient clearly has refused ANH prospectively, or at
present still has the capacity to refuse, the case is even clearer: the
physicians must accommodate the refusal. But what is notable, and notably

different from the Way of Medicine, is just what surrogates and clinicians
are respecting when accommodating such refusals. If the patient refuses
nutrition and hydration in order to die, then proponents of the PSM
generally suggest that the decision itself is to be honored out of respect for
patient autonomy. The thinking here is straightforward: the patient decides
whether his life is worth living. If he decides it is not, that settles the
question of what should be done, despite what seems a clearly suicidal
intention.

By contrast, the Way of Medicine holds that life is always a good, and the
complex good of life and health is the object of medical commitment.
Accordingly, a patient cannot reasonably refuse artificial nutrition and
hydration—whether by advance directive or in the moment—if his goal in
doing so is to bring about his death. Likewise, a clinician or surrogate who
cooperates in that decision in order to bring about the patient’s death is
doing something wrong—contrary both to practical reason and to the norms
of medicine.

Having said that, cooperation with the patient’s request is not entirely ruled
out. While the Way of Medicine does not ask clinicians to respect an
unreasonable choice, it does ask them to respect patients’ authority to make
such a choice. Thus, doctors are not to refuse a patient’s request to
discontinue ANH, even if the patient’s choice is unreasonable. The doctors
cooperate in order to honor the patient’s legitimate authority, however, not
to bring about the patient’s death.

Moreover, patients can refuse ANH uprightly. A patient might, for example,
decide in advance not to ask certain forms of care of their future caregivers,
out of concern for those caregivers. Or, sensitive to the limits both of health
and of medicine, the very elderly might ask not to be encumbered with
tubes when their time is already short. Both of these reasons for setting
limits to medical interventions are legitimate, and generally where the
possibility of an upright refusal exists, the patient’s legitimate exercise of
authority is to be respected even if one strongly suspects that that authority
is being misused in a particular case.

Thus, when it comes to refusing artificial nutrition and hydration, the Way
of Medicine overlaps with the PSM in acknowledging a patient’s authority

to refuse medical interventions, including ANH, and it contradicts the PSM
in rejecting suicide and any intentional cooperation with it.

Mrs. Garcia’s case differs from the cases just described, however, insofar as
she did not request prospectively that she not receive artificial nutrition and
hydration. What should the physicians do? They and Mrs. Garcia’s
surrogates should deliberate in the same way that they deliberated about
removing the ventilator. The rule of double effect still applies, though
among proponents of the Way of Medicine, some disagree with the notion
that tube feeding in a case like Mrs. Garcia’s can reasonably be considered
to have a burden that is disproportionate to the benefits it provides. Further,
some worry that under the pretense of removing a burdensome intervention,
those who want to discontinue ANH for Mrs. Garcia are actually making
the removal a means of bringing about her death.

Recall that the tube feeding may be discontinued if it is disproportionately
burdensome—that is, extraordinary. This presupposes that real benefits
accrue to continued feeding, for if feeding becomes strictly futile (e.g., if
the patient develops a bowel obstruction), it would be unreasonable for
physicians to even offer to continue it. But in Mrs. Garcia’s case ANH helps
to maintain her life and health (if there is no life, there is no health, and vice
versa). These are genuine goods for all human beings, and Mrs. Garcia
remains a human being.

Of course, some people object that Mrs. Garcia’s life and health are of value
only insofar as they make it possible for Mrs. Garcia to pursue other goods.
If that is true, ANH is no benefit to her, because her life and health are of no
further instrumental value. This claim is incompatible with the requirements
of practical reason, however, for all the basic goods are intrinsically good
for all human beings. It is also incompatible with a straightforward
inference from a basic claim. If we consider ourselves as having intrinsic
value and acknowledge that we are living animal organisms, our biological
lives must be of intrinsic value, for that which constitutes the existence of a
being with intrinsic value must itself have intrinsic value. So we take this
objection to be misconceived: Mrs. Garcia’s life and health remains good in
itself, even if she can realize that good only to a minimal degree.

Feeding Mrs. Garcia also realizes the good of solidarity—a form of
friendship, of being humanly and personally connected to another, willing
his or her good for its own sake, and engaging in care for them when they
are in need. Some actions clearly would violate such solidarity: dressing
Mrs. Garcia up like a clown for the amusement of others, violating her
physical integrity, and the like. Caring for her—and feeding is a primordial
form of caring—realizes the good of friendship even if Mrs. Garcia does
not consciously experience it.¹

Does ANH bring burdens? Yes. Tube feeding brings costs as well as risks of
infection, aspiration, and other clinical complications. Whether Mrs. Garcia
suffers as a result of her feeding tubes is hard to say. The burdens ANH
imposes on her seem relatively light, if not trivial. However, some patients
who are not in Mrs. Garcia’s circumstances face further burdens. Patients
with Alzheimer’s disease, for example, are sometimes distressed by feeding
tubes and tear them out; preventing their doing so can require chemical or
physical restraints, which impose significant burdens of their own. Such
burdens could warrant withdrawing the tubes to avoid these
(disproportionate) burdens. Likewise, if a patient is actively dying or is
otherwise unable to assimilate nutrition, the benefits of feeding will not be
proportionate to the burdens, and feeding may be discontinued. But in Mrs.
Garcia’s case, it seems less clear that continuing ANH brings
disproportionate burdens.

ANH should not be discontinued with the intention of bringing about Mrs.
Garcia’s death, and this principle raises a particular difficulty for one
response to the question of proportionality. In that response, the surrogates
or physicians might note that the burdens of care for Mrs. Garcia are quite
significant: she is in a nursing facility, which is expensive, and watching
and visiting her in this state is emotionally and physically taxing for her
family, while her wound care is tedious for the nurses. Surely these burdens,
one might argue, are disproportionate to the minor benefit of continued life
in a state of radically diminished health.

The practical reasoning advocated in the Way of Medicine looks to the
burdens and benefits of a particular intervention to ask whether there is
proportionality or disproportionality between the good and bad effects of

that intervention. But here, for Mrs. Garcia, the intervention in question is
tube feeding. We have identified the benefits (life and health) and burdens
(cost, risk of infection) of that intervention. Discontinuing tube feeding
removes, in itself, precisely those burdens; it does not, as such, remove the
overall costs of hospital care or the overall emotional and physical burdens
of caring for Mrs. Garcia. What removes those burdens is Mrs. Garcia’s
death. So the choice to withdraw ANH in order to end those burdens seems
to involve intending Mrs. Garcia’s death. Such a choice is impermissible on
the Way of Medicine.

Deliberating reasonably in this case requires focusing on the benefits and
burdens of the tube feeding itself. If the benefits of ANH are proportionate
to the burdens of ANH, the burdens should be accepted. That said, it
remains the case that one of us (Tollefsen) thinks that Mrs. Garcia should
certainly be fed in this case (though she might be brought home if that
would alleviate the other burdens of her care), while the other (Curlin)
believes that the vocational shape of Mrs. Garcia’s life may in some cases
be better honored by keeping her as free from technological interventions,
including feeding tubes, as possible. So Curlin believes one might
reasonably judge that ANH, in Mrs. Garcia’s case, no longer promises
benefits proportionate to the burdens of ANH itself (however minor those
appear to be). Disagreement is not impossible for those committed to the
Way of Medicine.

We return now to the last-resort options, the first of which also involves
nutrition and hydration.

LAST-RESORT OPTIONS

Abe Anderson is declining. His oncologists stop his chemotherapy. He
elects to receive hospice care at home. His pain worsens, requiring steadily
increasing doses of morphine. He manages to stay awake most of the time.
The hospice physician comes to see him at home a few weeks later. In their
conversation, Mr. Anderson notes, “I don’t want to languish, doc. I want to

go out on my own terms. What can I do if I don’t want to go on any
longer?”

Voluntary Cessation of Eating

Abe’s question invites his physician to offer last-resort options. The first
such option is for Abe to voluntarily stop eating (and/or drinking). In that
case, Abe’s remaining days would be few, and with adequate morphine
those days could be made relatively painless. But as we already noted, this
choice includes a lethal intention: Abe would forgo nutrition and hydration
in order to hasten his death, an intention ruled out by the demands of
practical reason. The Way of Medicine likewise rules out recommending or
suggesting such an approach, even if it would be wrong to force nutrition
and hydration on a patient who had given up on eating. So the physician
should not offer Abe the opportunity to starve himself to death, as if that
were a legitimate medical option.

This case must be distinguished from an otherwise similar scenario. Patients
who are dying often begin to withdraw from food and water. As we have
noted, in the final days of a terminal illness, nutrition often cannot be
assimilated, but even somewhat before this point, patients with advanced
illness can find themselves with no desire to eat and even with revulsion at
the thought of food. Turning away from food under such circumstances
does not seem to us a suicidal choice, but rather a choice to avoid
something that no longer seems enjoyable or meaningful in the way it once
did. If death is hastened by this choice, that is a proportionate and morally
permissible side effect.

Sedation to Unconsciousness

A second “last resort option” would be to sedate Abe so that he lives out his
last days free of any conscious suffering. In what has come to be called
palliative sedation to unconsciousness, formerly known as terminal
sedation,² physicians intentionally sedate patients to the point of
unconsciousness and keep them unconscious until they die. This differs
from what is called proportionate palliative sedation, in which sedatives are
used for the purpose of relieving anxiety, agitation, breathlessness, or other
symptoms, and diminished consciousness is foreseen as a side effect but not
intended.

We have written at length elsewhere about the ethics of palliative sedation,³
but we first want to emphasize that the Way of Medicine supports
proportionate palliative sedation. As long as the clinician aims only to
relieve health-diminishing symptoms and has proportionate reason to accept
unconsciousness as a side effect (thus satisfying the rule of double effect),
the sedation is morally permissible, even in cases in which it is expected
that sedation will continue until the patient dies. Indeed, physicians cannot
act to relieve health-diminishing symptoms except by accepting some level
of sedation as a side effect of their efforts. Almost all of the medications
used to relieve pain and other symptoms cause sedation as a side effect.
This is true of narcotics, of course, but also of medications to relieve
anxiety, seizures, delirium, nausea, and itching. To treat sedation as a side
effect aligns with the fact that patients and their families generally do not
want their sensoriums clouded or their capacities to think, talk, and pursue
the goods available to them blunted, but most will accept these losses if
they are side effects of efforts to relieve disabling symptoms, particularly at
the end of life.

We also note that proportionate palliative sedation can relieve disabling and
distressing symptoms in nearly all if not all clinical circumstances. In his
book Dying Well: Peace and Possibilities at the End of Life, Ira Byock, a
seasoned hospice physician, describes a case in which he came finally to
intentionally sedate a dying patient to unconsciousness because the patient’s
severe pain had proven refractory to every other treatment modality.⁴ Those
who advocate for sedation to unconsciousness as a form of physician aid-in-
dying often invoke cases like the one Dr. Byock described, just as advocates
for physician-assisted suicide and euthanasia invoke cases of excruciating

and untreatable pain. But these appeals are red herrings. Dr. Byock noted
that the case he described was the only such case he had experienced in
more than fifteen years of caring for dying patients.⁵ One of the authors of
this book (Curlin) has practiced hospice and palliative medicine for more
than ten years and has never encountered a patient whose pain or other
disabling symptoms could not be relieved under the norms of proportionate
palliative sedation. Last-resort options in general, and palliative sedation to
unconsciousness in particular, are used much more commonly to relieve a
type of suffering that is quite distinct from the pain experienced by Dr.
Byock’s patient. They are used to relieve existential suffering.

Sedation to unconsciousness to relieve existential suffering contradicts the
norms of the Way of Medicine. Consider first the character of existential
suffering, and then how the capacity for wakefulness relates to human
health. Suffering is, to some extent, inevitable in dying, for dying is in its
nature an evil—not a moral evil, but a privation of something always and
everywhere good: namely, human life and, more specifically, the life of a
person. While death is not to be feared above all things, and while we
believe that hope in eternal life should accompany death, nevertheless,
death is not good, and suffering itself is the experience of that which is not
as it should be.⁶ So the experience of illness and the prospect of imminent
death usually bring suffering, whether or not the patient experiences pain or
other symptoms. Pain and other symptoms heighten suffering in their direct,
noxious effects on conscious experience and also insofar as they disrupt our
ability to do what humans otherwise do when they are healthy. Moreover,
patients who are dying often experience alienation from themselves, their
friends and family, and even God. All of these bring suffering.

Existential suffering is the cognitive awareness of that which is not as it
should be. At the end of life, a patient may experience such suffering
through revulsion at the threat of death, regret at missed opportunities and
botched choices, sorrow over failed or ruptured relationships, or fear of the
divine. These are real problems and real forms of suffering. As such, they
require choices, attempts to maintain or restore what harmony is possible at
the end of life: acceptance of death, repentance of sin, reconciliation with
loved ones, and peace with God.

Sedation to unconsciousness cuts short all of these possible responses to
existential suffering. While perhaps not a choice for death as such, it is a
choice for a kind of moral death, putting oneself existentially out of reach
of these and all other possibilities. Such possibilities can be dramatic: those
who have read the novel Brideshead Revisited (or seen the miniseries) can
call to mind Lord Marchmain’s literal deathbed conversion, which restored
him both to his religion and, in various ways, to his family.⁷ Thus he was
restored to the forms of harmony and integrity available to him even at the
very end of life. But integrity and harmony (with reality, with one’s self,
with others, with God) are basic goods, and the opportunity to pursue them
should not be discarded without exceptionally strong reason. Sedation to
unconsciousness to avoid existential suffering, rather than to treat refractory
and crippling pain or other symptoms, thus seems to us incompatible with
being fully open to human goods.

Consider now how the capacity for wakefulness relates to human health.
Making a patient permanently unconscious diminishes the patient’s health;
that seems an uncontroversial point insofar as the capacity for wakefulness
is an expression of health. Here we must distinguish the state of suppressed
consciousness from the state of sleep, in which the individual is capable of
arousal. We also must distinguish keeping a person unconscious until he
dies from sedating him temporarily, as physicians often do as part of their
efforts (e.g., surgery) to preserve or restore health. It seems that in most
cases, and certainly in the case of existential suffering, physicians who
intentionally and permanently sedate patients to unconsciousness thereby
contradict the purposes of medicine.

In a very rare case, however, palliative sedation to unconsciousness would
be permissible. In that scenario, the patient would suffer, or be expected to
imminently suffer, such a severe form of altered—diseased, unhealthy,
disabling—consciousness that it would make sense to cut off this unhealthy
consciousness in the same way it makes sense sometimes to cut off a
severely diseased (say, gangrenous) limb. In such a case, we can say that the
patient’s health is diminished by virtue of losing consciousness or a limb,
but his health is less diminished without the consciousness or the limb than
with it. A part can be sacrificed for the health of a whole. Put differently, to
the extent that suppressing consciousness allows the organism to relax from

a state of high physical and psychic stress, such unconsciousness might be
an expression of health, albeit of a radically diminished sort. Such sedation
could continue until death if a return to consciousness is expected to bring a
return to high levels of distress refractory to proportionate palliative
sedation.

While such cases are exceedingly rare, Dr. Byock’s patient may have met
this criterion, and in Dr. Curlin’s experience, some cases of agitated
delirium (often called terminal delirium) at the end of life also may meet
this criterion. Still, we caution against the tendency to amputate
consciousness too readily, even in such cases. That tendency seems driven
by pressures and temptations—since patients who are unconscious require
less of the physician’s attention—to make the appearance of suffering go
away.⁸

Physician-Assisted Suicide and Voluntary Euthanasia

In the final last-resort options, a physician might prescribe a lethal dose of
some medication in order to help Abe take his own life (physician-assisted
suicide) or, alternatively, perhaps because Abe is too weak to do so himself,
the physician might administer the lethal dose himself (voluntary
euthanasia). We refer to both of these options as physician aid-in-dying.

Let us begin our discussion of physician-assisted suicide and voluntary
euthanasia not with our fictional case studies involving Mr. Anderson or
Mrs. Garcia but with a real case, one of the most influential in making the
public argument for physician aid-in-dying in our time.

Brittany Maynard was diagnosed with brain cancer in January 2014; she
was twenty-nine years old. In the remaining eight months of her life, she
became a prominent public advocate for legalization of physician-assisted
suicide. She moved from California to Oregon and, according to a plan she
had specified in advance, died on November 1 of that year after ingesting a
lethal physician-prescribed drug cocktail. Unquestionably, as a young,

attractive, and tragic face of the right-todie movement, Ms. Maynard, as
Arthur Caplan put it, “shifted the optics of the debate.”⁹

Ms. Maynard’s story illustrates a pattern: those who seek physician aid-in-
dying are rarely driven by the direct experience of refractory pain or other
symptoms.¹⁰ At the time she committed suicide, Ms. Maynard was not
experiencing symptoms beyond the reach of conventional palliative
medicine, nor are such symptoms expected from a brain tumor. Rather, as
she said, she chose to end her life on her own terms in order to avoid the
prospect of further debility and decline, in which she might “suffer
personality changes and verbal, cognitive and motor loss of virtually any
kind.”¹¹

Ms. Maynard’s desire to avoid debility and dependence reflects the pattern
found in official reports from Oregon and Washington State, where nine out
of ten patients requesting assisted suicide have reported being concerned
about “losing autonomy” (91.5 percent) and being “less able to engage in
activities making life enjoyable” (88.7 percent).¹²

The problem to which assisted suicide and euthanasia pose solutions, then,
is not uncontrolled pain. In Oregon, only one in four patients (24.7 percent)
have reported even “concern about” inadequate pain control,¹³ and at no
time in history have physicians and patients had greater access to effective
tools for treating pain and other distressing symptoms, tools that can be
deployed aggressively under ethical norms that have guided medicine for
ages.

Rather, the problem to which aid-in-dying poses a solution is loss of control
—the desire to sustain self-determination and autonomy in the face of
debilitating illness. In a piece in the Journal of the American Medical
Association, Dr. Timothy Quill and colleagues wrote, “Patients with serious
illness wish to have control over their own bodies, their own lives, and
concern about future physical and psychosocial distress.”¹⁴ Brittany
Maynard put the point bluntly in her online manifesto: “I want to die on my
own terms.” Seen in this light, the movement toward physician aid-in-dying
is the culmination of the PSM approach to medicine and medical ethics.

Ms. Maynard then added, “My question is who has the right to tell me that I
don’t deserve this choice?” That is a powerful question in our day. The
former Hemlock Society is now called “Compassion and Choices”
(emphasis ours).¹⁵ The California law legalizing assisted suicide was called
the End of Life Option Act (again, our emphasis).¹⁶ When Governor Jerry
Brown signed it, he said he did not know if he would avail himself of
assisted suicide, but “I wouldn’t deny that right to others.”¹⁷ Choice looms
large.

But what kind of choice is Ms. Maynard and others like her being denied if
physicians refuse to hasten their deaths? Ms. Maynard already had the right
to refuse life-sustaining treatment. She had the right to proportionate
palliation of her symptoms even if death were hastened as a side effect. She
had the means and capacity to cause her death by numerous methods that do
not involve physicians and that are equally if not more efficient and
effective than ingesting an overdose of pharmaceuticals. Why is it so
essential that she and others have physicians, in particular, cooperate in
helping them kill themselves?

That physicians are being asked, or even required, to cooperate shows that
“the right to choose” is, as the late Robert Burt noted, “radically incomplete
as a justification for physician assisted suicide.”¹⁸ The right to choose has
been transformed into a positive entitlement to have others help bring about
what has been chosen—and not just any others, but medical professionals
specifically. The physician aid-in-dying movement portends large-scale
changes for the medical profession that will mark the definitive end of the
Way of Medicine and the advent of a more authoritarian form of the PSM.

We discuss the PSM’s exclusivist and authoritarian tendencies in chapter
10. Here we consider three questions that are central to evaluating the
proposals for physician aid-in-dying. First, and most generally, how do the
requirements of practical reason bear upon the practice of physician aid-in-
dying? Second, how is physician aid-in dying related to the ends of
medicine? And third, what will physician aid-in-dying do to patient trust?

The Requirements of Practical Reason and Killing at the End of Life

Practical reason’s judgment on the question of physician aid-in-dying is in
one sense quite straightforward. All the suggested forms of this practice,
including physician-assisted suicide and voluntary euthanasia, involve
intentional killing: the patient’s death is the means to relieve her suffering
or is the satisfaction of her desire to maintain control. But it is always
wrong to intend the death of an innocent person. So one may not reasonably
kill oneself, kill another, or help another to kill him- or herself. So far, then,
the various forms of aid-in-dying seem little different morally from elective
abortion.

But killing at the end of life differs from abortion in an important way. No
abortion ever takes place with the consent of the unborn child, so except in
vital conflict cases, such killing not only violates the moral norm that basic
goods are not to be intentionally damaged or destroyed, but also the norm
of fairness. (As our discussion of Judith Jarvis Thomson showed, the latter
norm is usually violated even when the former norm is not.) In contrast—
and the aid-in-dying movement makes much of this fact—those who seek
physician assistance in death generally actively want and choose to die.
While physician aid-indying clearly violates the norm against intentional
killing, physician aid-in-dying for competent adults does not obviously
violate the norm requiring fairness.

As a matter of clinical ethics, the norm requiring fairness is irrelevant
insofar as killing the innocent is always wrong, and no morally upright
physician or patient would participate in such killing. But fairness is a
central part of justice, and justice is the paradigmatic social virtue. Political
states and professional institutions are structured around the demands of
justice. Even though an act might be morally wrong, if it is not a matter of
injustice, the state is unlikely to show much concern. People arguing that
the state and the medical profession should forbid physician aid-in-dying
make a stronger case if they show the practice to be not only wrong but
substantively unjust.

We believe this challenge can be met. Legalizing physician aidin-dying is
rightly a matter of political concern and concern for the medical profession,
especially if it threatens to reshape medical practice in ways that portend
harms to many unconsenting patients. Insofar as physician aid-in-dying
poses such a threat, strong reasons persist to maintain vigorous legal and
professional restrictions on the practice and to refuse to give physicians a
right that no other citizen possesses: the right to intentionally cause the
death of an innocent person.

The End of Medicine and Aid-in-Dying

The Way of Medicine also returns a quick answer to the question of
physician aid-in-dying. The end of medicine is health, and the physician
professes to seek health in patients. Physician-assisted suicide and
voluntary euthanasia involve actions that intend the death of the patient, the
first by means of cooperation with the patient’s suicidal intention, the
second by a direct action of the physician intended to end the patient’s life.
Few acts seem more distinctly contrary to the end and the vocational
commitment of medicine, and for this reason alone, they have no place in
the profession. Nor should physicians be expected, much less required, to
aid or facilitate such actions, even by providing referrals.

For a profession in good order, this point would suffice. But the question
remains: how are concerns of justice and fairness implicated here? To
address this question, we turn to a further, deeply related, objection to
physician aid-in-dying: these practices threaten to erode trust and
trustworthiness—central virtues of the physician-patient relationship,
without which the profession cannot long continue.

Trust

Robert Burt, quoted earlier, also noted, “The confident assertion of the self-
determination right leaves unacknowledged and unanswered a crucial
background question: who can be trusted to care for me when I am too
vulnerable and fearful to care for myself?”¹⁹

His point is well taken. For every Abe Anderson and Brittany Maynard who
wants a physician to help them end their lives, physicians are called to care
for numerous other radically diminished patients who, along with their
families, count on physicians to care for them, seeking to preserve and
restore the health that remains insofar as reasonably possible. An example
from Curlin’s practice makes the point:

Dr. Curlin was asked to see a patient in the emergency room.²⁰ The patient,
Mr. Roberts, had advanced dementia; he had not spoken in three years. He
was brought to the hospital by his brother and his niece, who for several
years had cared for him at home. The emergency physician’s initial
evaluation made clear that Mr. Roberts had a serious pneumonia and was
beginning to suffer septic shock and respiratory failure. After Dr. Curlin
spoke briefly with Mr. Roberts’s family members, they agreed with his
proposal to give the patient antibiotics, oxygen, and other supportive
therapy but to forgo mechanical ventilation, even if Mr. Roberts came to the
point of not being able to breathe on his own. Dr. Curlin then asked the
patient’s brother and niece if they had ever considered hospice care for Mr.
Roberts. Both shook their heads and said adamantly, “We are not interested
in hospice.” “Why is that?” Dr. Curlin asked. They responded that what
they had seen indicated that hospice too often forgoes any effort to provide
medical care for patients, instead focusing only on giving potent drugs like
morphine and sedatives, and thereby hastening patients’ death.

Mr. Roberts’s family members’ concern is one that Dr. Curlin has heard
voiced by numerous other patients and family members in Durham, North
Carolina, and on the South Side of Chicago, and it highlights a question that
physicians must consider: with respect to physician aidin-dying, which of

the following should physicians care about most: maintaining the trust of
those who, like Mr. Roberts and his family, already experience the debility,
dependence, and suffering that advanced illness brings or empowering those
who, like Brittany Maynard, seek through assisted suicide to avoid such
debility, dependence, and suffering?

That was not a rhetorical question for Mr. Roberts’s family. Indeed, like too
many others, they had come to the conclusion that some physicians who
wield the tools of palliative medicine are not to be trusted because such
physicians have so prioritized relieving suffering that they fail to do what
patients count on physicians to do: use reasonable means to preserve the
health and lives of the patients. How much less likely would Mr. Roberts’s
family be to entrust him to a physician or group of physicians that is in the
habit of practicing assisted suicide or euthanasia or encouraging people to
stop eating or to stop feeding their loved ones? We doubt their worries
would be assuaged upon hearing that the physicians do so “only for those
who choose” these options.

Physicians cannot practice hastening or causing the deaths of their patients
without undermining the trust on which the practice of medicine depends.
This insight is not new. Physicians who care for patients with advanced
illness have long known that everyone will at times be tempted to do away
with suffering by doing away with the patient. To militate against that
temptation, physicians have for more than two millennia sworn in the
Hippocratic Oath, “I will neither give a deadly drug to anybody who asks
for it, nor will I make a suggestion to this effect.”²¹ The American Medical
Association has maintained since its founding, “Physician assisted suicide
is fundamentally inconsistent with the physician’s professional role.”²² The
World Medical Association has opposed assisted suicide and euthanasia
since the association was formed and issued the Declaration of Geneva just
after the Second World War. Indeed, insofar as physicians enjoy the trust of
patients made vulnerable by illness, it is because, since Hippocrates, at
least, they have maintained solidarity with those who are sick and disabled,
seeking only to heal and refusing to use their skills and powers to do harm.
That is why physicians have refused to participate in capital punishment, to
be active combatants, or to help patients commit suicide.

Importantly, this boundary against intentionally causing a patient’s death
not only gives patients a reason to trust physicians but also gives physicians
the freedom they need to do their work. For example, Dr. Curlin was able to
tell Mr. Roberts’s family members that as a physician he is committed to
never hasten or cause a patient’s death intentionally. This boundary creates
a space in which he and other physicians can act decisively to palliate
distressing symptoms—for example, by using morphine to alleviate the
apparent breathlessness that Mr. Roberts was experiencing or sedatives to
relieve a state of restlessness and agitation in Abe Anderson. Without this
boundary, Mr. Roberts’s family has good reasons to worry that the
morphine that leads to sedation is dosed not in proportion to the pain or
breathlessness of their loved one but in an effort to hurry along the dying
process.

To return to the question we posed above: which should be most important
to physicians—maintaining the trust of those who, like Mr. Roberts and his
family, already experience the debility, dependence, and suffering that
advanced illness brings or empowering those who, like Brittany Maynard,
seek through physician aid-in-dying to avoid such debility, dependence, and
suffering? The witness of physicians and patients through the centuries and
into the present has affirmed that we cannot have it both ways. But the
question is central to determining the practice of medicine into the future.

At the heart of medicine is solidarity with those who are diminished in
health, disabled in body, and therefore most dependent on trustworthy
professionals devoted to their care. Physicians maintain solidarity with
those who, to borrow Ms. Maynard’s terms, suffer “verbal, cognitive and
motor loss of virtually [every] kind,” whether from developmental
disabilities, traumatic injuries, dementia, or other debilitating chronic
conditions. The countless patients who live with such conditions display a
truth that Brittany Maynard could not see and that those suffering advanced
illness may struggle to keep in view: debility and dependence do not render
lives not worth living; human dignity does not require living or dying on
one’s own terms.

In a culture that emphasizes success and productivity, youthfulness and
beauty, autonomy and control, such trust becomes obscured. The public

images of Ms. Maynard made it conspicuously obvious that she possessed
all of those when her disease struck, and her statements made it clear that
she saw a condition in which these were lost as one worse than death. Not
incidentally, those who advocate for and avail themselves of assisted
suicide are overwhelmingly white, well-off, and accustomed to being able-
bodied. According to official reports, of the 1,083 people who died in
Oregon by assisted suicide prior to January 19, 2018, only 1 was African
American (statistically, one would have expected at least 20, as 2.1 percent
of Oregon’s population is African American, according to the US Census).²³
In Washington State’s March 2018 report, fewer than 4 percent of deaths by
assisted suicide (from 2015 to 2017) were nonwhites, whereas 20 percent of
the population was nonwhite.²⁴ Mr. Roberts’s family, like most of Dr.
Curlin’s patients in Chicago and Durham, was African American. A
population that already has experienced itself as vulnerable is more likely to
see the practice of physician aid-in-dying not as a boon but as a threat.²⁵

If “verbal, cognitive, and motor loss” renders life not worth living, you
might think that disability groups would welcome physicians hastening or
causing the deaths of those who so choose. But the opposite is the case.
Disability groups overwhelmingly oppose assisted death. The prominent
advocacy group Not Dead Yet speaks for many in arguing that “it cannot be
seriously maintained” that legalization of assisted suicide will not lead to
“inappropriate pressures from family or society” for people to end their
lives. The group contends that “assisted suicide laws ensure legal immunity
for physicians who already devalue the lives of older and disabled people
and have significant economic incentives to at least agree with their
suicides, if not encourage them, or worse.”²⁶

To summarize, under the approach we propose, assisted death is
impermissible, first because it is never reasonable for anyone to kill the
innocent or to help the innocent kill themselves. Assisted death is
impermissible for physicians a fortiori, because killing contradicts the very
nature of the practice of medicine and its orientation to the patient’s health.
If anyone is to help people take their lives, let it not be physicians. But even
if these time-tested reasons have lost their grasp on our moral imaginations,
it should be clear that it is unjust to purchase yet another choice for those

accustomed to living life on their own terms at the cost of betraying
physicians’ distinctive solidarity with, and thereby undermining the trust of,
those who live under the terms of illness and disability that they have not
chosen, but with respect to which they should be able to count on
physicians’ care.

The question of trust points to the importance—not just for the medical
profession, but also for society and law—of maintaining with strictest
fidelity the norm against permitting doctors intentionally to kill their
patients. The profession of medicine is socially of great value: it ensures
that the good of those whose health is compromised will be pursued based
on the solidarity of the healer and the patient. But that relationship remains
unequal, and that inequality contributes to the patient’s vulnerability.
Clinical ethicist Richard Zaner has gone so far as to wonder what keeps
physicians from acting like Plato’s Gyges. When Gyges discovered a ring
that made him invisible, he immediately killed the king and seduced his
wife, taking advantage of his power in the assurance that he would not be
caught.²⁷

Zaner points to the importance of trust as a constitutive virtue for the
medical profession, one without which there simply would be no such
profession. Given the deep and abiding importance of medicine—we will
all be sick, we will all be vulnerable, and we will all die—it is imperative
that this fundamental virtue be maintained. And that requires, we might say,
a medical-moral ecology that upholds the virtue and makes its continued
existence possible. Such an ecology requires that the norm against
intentionally harming or killing be maintained in the medical profession
with all the strictness suggested by the Way of Medicine. That norm is the
touchstone of medicine.

CHAPTER TEN

Conscientious Medicine

Doctors often refuse patients’ requests—a fact about the practice of
medicine so familiar that it is easy to overlook—even when patients request
interventions that are legal and permitted by the medical profession.

Doctors’ refusals are neither new nor infrequent, and only a small minority
occasion any controversy. Surgeons refuse to operate when they believe a
surgery is unlikely to succeed. Physicians refuse medications when they
believe the medications are unlikely to be helpful. Clinicians refuse
requested interventions because of concerns about safety or efficacy, and
they refuse because of less tangible concerns that are no less real. Some
pediatricians refuse to supplement the growth hormones of boys who are
short because of concerns about crossing a line between treatment and
enhancement. Some primary care physicians at times refuse costly workups
for what they believe are psychosomatic syndromes out of concern for their
colleagues’ time and other medical resources. Obstetrician-gynecologists
who will abort fetuses with lethal congenital anomalies may refuse to abort
those with Down syndrome or cleft palates out of concern about societal
attitudes toward those with disabilities or those who are female out of
concern about sexism. Physicians refuse patients’ requests even when such
requests are informed, even when patients meet some published criteria for
the intervention in question, and even when physicians are aware that some
or even most of their colleagues would disagree with their refusals.

In recent years, however, controversy has erupted over the issue of
physicians’ refusing to provide or facilitate patients’ access to certain
morally contested interventions, such as abortions, physician-assisted
suicides, or surgical modifications of secondary sex characteristics (gender

transition services). When physicians refuse such interventions, many now
argue, they are letting their personal values interfere with their professional
obligations.¹ A recent essay in the New England Journal of Medicine by
Ronit Stahl and Ezekiel Emanuel illustrates the point: Stahl and Emanuel
assert that patients have a right to choose the healthcare services they need
for their own well-being, and physicians have a corollary obligation to
accommodate the patients’ choices, either by providing the requested
interventions directly or by referring the patients to doctors who will.²

Such claims are starting to gain the force of policy in some jurisdictions.
Historically, the medical profession has given wide latitude to physicians’
discretion in areas of disagreement. Professional codes have consistently
stated that physicians are not obligated to satisfy patients’ requests for
interventions that the physicians believe are not in the interest of the
patients’ health. In 2015, however, Ontario’s College of Physicians and
Surgeons issued a rule requiring physicians to “take positive steps” to make
“effective referrals” for all legal interventions that a patient might request,
including euthanasia. The college’s working group concluded that there is
“no qualitative difference” between euthanasia and other “health care
services.”³ In 2016, the Illinois General Assembly revised a decades-old
law that previously had prevented employers from discriminating against
healthcare workers who refused to engage in practices to which they had
principled objections. The new version requires employees to at least make
referrals.⁴ In 2017 Sweden’s Labor Court ruled that clinics can lawfully
refuse work to nurse midwives who refuse to perform abortions.⁵ If
physicians have personal objections to some interventions, the reasoning
goes, they must avoid areas of medicine in which those interventions are
likely to be requested.

Something is right about all of this. After all, as Stahl and Emanuel put it,
physicians are not conscripts. No one is compelled to become a physician,
and in becoming a physician, one willingly takes on responsibilities that go
with the role. Surely the profession and the public can hold physicians to
fulfill their professional responsibilities or, as Stahl and Emanuel put it,
their “role morality.”⁶ We would not countenance teachers who refuse to
grade their students’ work or attorneys who refuse to represent their clients

before the justice system. Why would we allow physicians to refuse what
patients request?

Yet the boundaries of what we accept and what we reject where
professional refusals are concerned clearly center on answers to the
following questions: what is the profession for, and what are the obligations
that come with one’s profession? Teachers are allowed and even expected to
refuse requests of students if those requests are irrelevant or run contrary to
the purposes of teaching. The same is true for lawyers and their clients.

The same is also true for medicine, yet medicine is, as we have argued
throughout this book, in the grip of a conflict between two radically
different ways of answering these questions, and debates about
conscientious refusals indicate that the profession of medicine cannot
continue indefinitely with these two contradictory construals of its purpose.
The issue of conscientious refusals brings the rivalry and tension between
the PSM and the Way of Medicine to a head. Physicians face a choice, and
the stakes are high. Insofar as their profession embraces the PSM,
physicians’ consciences threaten their patients’ well-being and must be
suppressed. Unfortunately, by suppressing conscientious practice, the PSM
reduces medicine to a demoralized job and augurs the end of medicine as a
profession. Therefore, we encourage physicians to reject the PSM and
recover the profession’s orientation to their patients’ health as a genuine
good. This commitment to their patients’ health gives physicians a
reasonable standard for discerning which requests should be accommodated
and which refused.

THE PROVIDER OF SERVICES MODEL AND PHYSICIANS’
REFUSAL

Abe Anderson’s physician refuses to prescribe antibiotics.

Cindy Parker’s physician refuses to refer her for an abortion.

In the PSM, informed consent gives way to informed choice: patients
choose, physicians provide. A physician may refuse to perform
interventions that are technically infeasible, illegal, or unavailable and may
refuse interventions that are futile with respect to the reason for which the
patient seeks the intervention. But if these threshold conditions are met, the
patients’ choices are to be accommodated. Principles can be brought to
bear, of course, and utilities can be measured in an effort to maximize them.
The physician can also advert to “accepted clinical and professional
norms.” Only the patient, however, is in a position to balance and specify
the relevant principles or to weigh the relevant utilities in order to
determine what the patient’s well-being requires. Moreover, according to
the PSM, the central clinical and professional norm is putting patient well-
being first; personal scruples cannot get in the way of a patient’s receiving
what she genuinely believes she needs.

This idea of patient well-being plays a central role in the PSM. When
proponents of the PSM criticize conscientious refusals, they consistently
refer to the patient’s well-being rather than to the patient’s health. “Health
care providers,” write Stahl and Emanuel, “have a primary interest: to
promote the well-being of patients.”⁷ And again: according to the American
Congress of Obstetrics and Gynecology (ACOG), “Providers” have a
“fundamental duty to enable patients to make decisions for themselves.”⁸
Under the PSM, medical professionals are providers whose goal is to do
what is conducive to patients’ well-being. This defines what Stahl and
Emanuel call the physician’s “role morality.” Adhering to that morality
“means offering and providing accepted medical interventions in
accordance with patients’ reasoned decisions.”⁹

Given all of this, we might expect proponents of the PSM to condemn both
of the above refusals. Curiously, that is not what happens. True, Mr.
Anderson and Ms. Parker both request interventions that are feasible, legal,
and available, and neither intervention is futile with respect to the patient’s
goals. Moreover, Abe and Cindy both believe their well-being requires the

interventions they request. Abe understands why the physician does not
recommend antibiotics, but he wants the prescription in order to satisfy his
wife and to reduce the (albeit small) risk of his missing more days of work.
Cindy understands why many find abortion morally problematic, but she
wants the abortion in order to preserve the future that she believes she will
lose if she carries the pregnancy to term. Despite these similarities, only the
physician’s refusal of Cindy’s request typically raises the ire of those who
criticize conscientious refusals.

How can this be? On the Way of Medicine, each refusal may be justified
insofar as it is grounded in a judgment that what is requested does not serve,
or indeed is contrary to, the end of patient health. How, though, can the
PSM distinguish between the two cases? It does so by introducing and
leaning heavily on a new distinction: between refusals based on
professional reasons and refusals based on personal reasons. According to
the PSM, the physician who refuses Abe’s request for antibiotics is justified
because the physician refuses for medical or professional reasons and
thereby upholds the physician’s “role morality.” In contrast, the physician
who refuses Cindy’s request is condemned for allowing personal and
private concerns to intrude on what should be a strictly professional
consideration.

It is difficult to overstate the importance to the PSM of the distinction
between the personal and the professional, whether posed as personal moral
values versus professional ethical obligations, personal conscience versus
professional conscience,¹⁰ personal integrity versus professional integrity,¹¹
or simply personal reasons versus medical reasons. Physicians may believe
what they will “in their private lives,” write Stahl and Emanuel, “but in
their role as health care professionals, they must provide the appropriate
interventions as specified by the medical profession.”¹²

It perhaps goes without saying that judgments of conscience are, for the
PSM, the apotheosis of the personal. To refuse on the basis of conscience is
to allow personal biases to interfere with professional obligations,
particularly with the obligation to respect patients’ autonomy. It may be
difficult, the reasoning goes, but sometimes clinicians have professional
obligations to do what their personal consciences object to doing.

Yet even advocates of the PSM concede that clinicians may refuse patients’
requests when they have strong medical reasons to do so, as presumably
Mr. Anderson’s physician did, judging that antibiotics are not medically
indicated for a viral infection. How does one know whether one’s reasons
are sufficiently medical? The PSM fails to provide any nonarbitrary
standard to guide such judgments (a problem to which we return below),
but proponents of the PSM are clear that medical reasons simply cannot
include traditional norms such as the injunction to never intentionally
damage or destroy the patient’s health. They are equally clear that
physicians who allow personal concerns to influence their professional
practices thereby abuse their power and threaten harm to their patients—not
harm to the patients’ health per se, but harm to “well-being as the patient
perceives it.”¹³

Here we see the final conceptual novelty of the PSM: its standard for harm
emerges from its standard for benefit—patient well-being. In the end, if the
patient desires something in accordance with her conception of her own
well-being, the PSM calls on the physician to provide what the patient
requests or at least refer her to someone who will. To do otherwise is to fail
to obey the principle of nonmaleficence.

This position comes with deep political and professional implications. From
the standpoint of social authorities, including the state and professional
licensing organizations, the PSM implies that a physician is obligated via an
implicit social contract to provide health-care services according to the
patient’s informed choices. Dan Brock, in arguing that physicians are at
least obligated to refer patients for any legal intervention, takes for granted
that the medical profession is obligated by social contract to make available
all legal interventions.¹⁴ Therefore, authorities must scrutinize physicians’
refusals carefully; the burden of proof is on physicians to justify their
refusals and to show that they are not based on personal values.

ACOG proposes further scrutiny to make sure that physicians’ refusals are
not based on prejudice and that they are based on sound science.¹⁵
Physicians may not, for example, refuse to prescribe contraceptives based
on concern about preventing implantation of an embryo, because studies
suggest that the incidence of such effects is low (there is no need to

consider whether the incidence is low enough to make the moral difference,
as long as there is “scientific support” for treating the incidence as trivial).
Some proponents of the PSM ask policymakers to mandate such scrutiny, to
demand alternative service from those who refuse patients’ requests,¹⁶ and
to threaten sanctions that would make conscientious refusals costly.¹⁷

But such demands appear to be merely stopgap measures in anticipation of
the desired end state: the elimination of conscientious refusals from the
professional lives of physicians. As Julian Savulescu put it more than a
decade ago in an essay that seems increasingly prophetic, “If people are not
prepared to offer legally permitted, efficient, and beneficial care to a patient
because it conflicts with their values, they should not be doctors.”¹⁸

THE WAY OF MEDICINE AND PHYSICIAN REFUSAL

The Way of Medicine casts physicians’ refusals in a very different light,
asking first whether a refusal is consistent with, or contradicts, the
physicians’ commitment to the patients’ health. Rather than a prima facie
obligation to provide whatever a patient seeks, the physician instead has an
obligation to pursue what the patient’s health requires (understanding that
there may be several possible avenues of pursuit) and to refuse to act in
ways that are contrary to the patient’s health. Such refusals, rather than
abusing power, properly exercise the physician’s authority.

Note how differently the Way of Medicine treats the categories of personal
and professional. Because the PSM eschews any objective end for
medicine, the professional obligations of the physician must come from
outside the practice of medicine. Those obligations cannot be generated and
justified by commitments to an objective good that provides the purpose for
the profession. Hence the importance of what is legal, what is technically
possible, and what is desired by the patient, none of which is intrinsically
related to an essential purpose of medicine. Thus also, professional
obligations are potentially at odds with the physician’s personal

commitments, which must be left behind or overcome when they conflict
with the “professional.”

By contrast, the Way of Medicine calls on the physician, as a member of the
profession, to personally deepen and specify a commitment that the
physician already has made: attending to those who are sick so as to
preserve and restore their health—to raise that commitment to the level
appropriate to a vocation-defining profession. For practitioners of medicine,
then, the central obligation in each of the above cases is clear: to act
reasonably to preserve and restore the patient’s health, and to refuse to act
otherwise.

As we see from a slightly more philosophical perspective in the next
section, physicians can succeed in this task only if they practice according
to conscience. A physician’s conscience is clinical judgment in action. It is
the capacity used when judging whether an inclination to refuse Abe’s or
Cindy’s request is based on good reason, unreasonable desire, or unjustified
prejudice. Practicing conscientiously may be difficult, but it can never be
reasonable for a clinician to do otherwise.

The Way of Medicine also has implications for those with professional and
political authority. It teaches them that if physicians are to attend to those
who are sick using reasonable means to preserve and restore their health,
they need professional space in which to exercise judgment and to practice
conscientiously. Although the state has grounds to hold physicians
accountable to general norms of justice and the licensing and accrediting
authorities have grounds to hold physicians accountable to meet their
professional obligations, neither the state nor any other authority has
grounds to compel physicians to contradict their professional
responsibilities.

Thus, neither the state nor the profession should be in the business of
coercing physicians into meeting unscrutinized patient demands, any more
than they should coerce patients to accept this rather than that physician
proposal. Patients must be protected from the unscrupulous and the
incompetent, which a profession’s best efforts will never entirely succeed in
weeding out, and a profession must ensure that all its professionals carry
out the constitutive commitments of the profession to seek healing for those

who are sick. But professional responsibility encompasses the obligation,
and hence the right, to make conscientious judgments about what is
required in light of one’s guiding professional and vocational commitments.
This is no less true for physicians than for other professionals.

VIRTUES OF THE WAY OF MEDICINE

One’s approach to conscientious refusals turns on how one defines the
substance of physicians’ professional commitments and obligations, and we
have argued throughout the book that the Way of Medicine specifies those
commitments and obligations more reasonably. The Way of Medicine has
additional virtues that the PSM lacks.

A Better Understanding of Conscience

What makes a refusal conscientious? A judgment of conscience is, in the
paradigm case, a person’s final determination of what is permitted, not
permitted, or obligatory in a particular circumstance. What faculty is
responsible for these judgments? The traditional view is that of Aquinas: it
is practical reason, which knows the first principles of the moral law, and
practical reason, which applies those principles to situations and
circumstances so as to lead to particular moral judgments about how one
ought to act. Thus, the faculty that is responsible for judgments of
conscience, as well as the more general normative judgments presupposed
by conscience, is human reason, which is why we have spoken throughout
this book of the requirements of practical reason.¹⁹

Three points are worth noting here. First, conscience judges a person’s own
actions or motives, not those of others. Second, conscience is not a set of
considerations that a person might weigh in making a moral judgment;

rather, conscience is exercised in the judgment about how one should act in
light of all such considerations. Third, as an act of human reason,
conscience is necessarily limited and fallible; no person sees with absolute
clarity, and no person judges his or her own actions with perfect accuracy.

In light of these three points, we can see that although conscientiousness—
following one’s judgments of conscience—is necessary for ethical action, it
is not sufficient. A malformed or misinformed conscience will err. For
example, a conscientious physician may fail in his duties to relieve a
patient’s debilitating pain because he has not been trained to pay close
attention to or seek to relieve pain. Alternatively, he may fail because he
mistakenly interprets the patients’ behavior as drug-seeking and
malingering. So every physician is obligated to seek to inform his or her
conscience with the best available information, including true moral
principles. Every physician must consider arguments made by patients or
colleagues that call the physician’s initial judgment into question, and
physicians must be willing to change their judgment when they can see that
it was mistaken.

Nevertheless, in the end physicians must act, and however fallible,
physicians can act ethically only if they act according to their consciences.
Errors with respect to conscience obscure this fact. According to ACOG,
“An appeal to conscience would express a sentiment such as ‘If I were to do
“x,” I could not live with myself / I would hate myself / I wouldn’t be able
to sleep at night.’”²⁰ In fact, rarely are conscientious practices so
emotionally momentous. Rather, to practice conscientiously is simply to act
according to one’s best judgment about how one ought to act from situation
to situation, patient to patient.

Others allege that appeals to conscience are disingenuous and hide
unspoken prejudices.²¹ It goes without saying that physicians who act
disingenuously are not acting conscientiously. To act conscientiously is to
act according to what one understands to be the demands of reason. Even
where agreement exists about the purposes of medicine, physicians still
must consider innumerable different factors in order to discern how best to
seek the health of a particular patient in a particular context. This task is
almost always attended by ambiguity and uncertainty, requiring what

Aristotle called phronesis or practical wisdom, the manifestation of which
in the practice of medicine has been called good clinical judgment.²² If
physicians are to exercise clinical judgment in seeking their patients’ health,
they will necessarily refuse some patient requests.

These points illustrate another virtue of the Way of Medicine: its
understanding of conscience is much more adequate than that of the PSM.
The PSM asks us to treat conscience not as a faculty of reason but as a set
of arbitrary and idiosyncratic personal values. Stahl and Emanuel equate
conscience with appeal to “personal religious or moral beliefs.”²³ With
conscience so construed, the physician who acts conscientiously is focused
on himself and his own needs rather than on the good and what is required
of him. ACOG similarly associates conscientiousness with a need to be able
to sleep at night and a defense against moral disintegration. These personal
needs, however important, are in tension with one’s professional
commitments: “By virtue of entering the profession of medicine, physicians
accept a set of moral values—and duties—that are central to medical
practice. Thus, with professional privileges come professional
responsibilities to patients, which must precede a provider’s personal
interests.”²⁴ Stahl and Emanuel similarly aver that, “physicians’ personal
commitments cannot outweigh the interests of patients,” and they contend
that to follow conscience in refusing a patient’s request “violates the central
tenet of professional role morality in the field of medicine: the patient
comes first.”²⁵

These misconstruals of what the conscience is lead critics to make
unsupportable and contradictory claims. Critics claim that a clinician who
refuses a patient’s request thereby allows the clinician’s conscience to
trump the patient’s conscience, when in fact no conscience can trump
another conscience, since conscience judges only one’s own actions. Critics
claim that physicians should distinguish “personal conscience” from
“professional conscience,” or that physicians should balance one or both
against other considerations in deciding what to do in a given case.²⁶ Some
critics also suggest that a physician occasionally has an obligation to act
against conscience.

Such claims can make sense only if the conscience is a set of values. Then
one could have a professional conscience, a personal conscience, and
perhaps others as well. One could weigh up the conscience against other
considerations, or one conscience against another. One might even have
reason to act against conscience. But none of these construals makes sense
in light of what the conscience is: the faculty of reason that renders the final
judgment as regards what one ought to do, all things considered. So
understood, an individual has but one conscience and integrity requires that
her conscience cannot be split into components. She cannot take up her
judgment of conscience as one consideration among others. While a
physician might well have reason to reconsider an initial judgment in light
of new information, it can never be right to act against conscience, for in
doing so one is acting contrary to one’s final judgment about how one ought
to act. That is a paradigm case of acting unreasonably.

A Better Understanding of “Professional Responsibility”

The Way of Medicine not only has a more adequate construal of conscience
and its place in the practice of medicine than the PSM; it also possesses a
nonarbitrary standard for distinguishing refusals that align with the
physician’s vocation from those that contradict that vocation. Unless we are
to say that physicians may never refuse anything patients request,
physicians must have some criteria by which to distinguish between
justified and unjustified refusals.

The PSM turns, for such criterion, to the putative distinction between the
personal and the professional. As we show here, the problem with this
putative distinction is that the term “ personal” has no meaning in these
debates except “not professional,” and “ not professional” has no meaning
unless one can specify the content of the physician’s profession. As Abe’s
case demonstrates, without an objective standard for the medical profession,
saying that a concern is merely personal is not possible. Anything that
relates to the patient’s well-being can be considered a professional concern.

In the end, the category of “personal” distracts from and cloaks the fact that
the PSM cannot say what the physician’s profession requires beyond
accommodating patients’ considered, informed requests for legal and
technically feasible interventions. Without any objective standard to look to,
proponents of the PSM draw idiosyncratic and arbitrary lines between the
personal and the professional. For example, ACOG contends that
physicians must refuse policies that require them to report undocumented
patients to immigration authorities, because such policies conflict with
other professional norms, including the “primary principle of
nonmaleficence.”²⁷ In the same piece, however, ACOG takes it for granted
that physicians must refer patients for abortion, ignoring altogether
arguments that abortion violates the same principle of nonmaleficence.
Stahl and Emanuel claim that physicians might justifiably refuse assisted
suicide—a practice Emanuel has publicly opposed for decades—because
the practice is “currently controversial and subject to debate about whether
[it is] medically appropriate.”²⁸ However, they cannot bring themselves to
imagine that abortion and gender transition surgery are similarly
controversial and subject to similar debate. “Professional” responsibilities
thus emerge as sufficiently malleable to rule out what a writer dislikes and
to require what the writer affirms.

In seeking to say more about the “professional,” proponents of the PSM
often look to public and professional opinion in arbitrary and self-
contradictory ways or appeal to straw men to critique moral judgments in
medicine. On the one hand, they will refer to a “standard of care” and a
“consensus” as establishing the scope of what physicians must do. But in
the next breath they refer to the absence of consensus as the reason
physicians cannot justifiably refuse some intervention (because many
people disagree with the physician’s “personal” opinion). In a particularly
curious turn, Stahl and Emanuel claim that “health care professionals
voluntarily choose their roles and thus become obligated to provide,
perform, and refer patients for interventions according to the standards of
the profession.” Yet they then lament that the organizations that most
authoritatively establish the standards of the profession “all tend to accept
rather than question conscientious objection in health care.”²⁹ ACOG as
well as Stahl and Emanuel acknowledges deep societal disagreement about

whether abortion is permissible, yet both claim that abortion is standard
medical practice. “Although abortion is politically and culturally
contested,” Stahl and Emanuel write, “it is not medically controversial.”³⁰
So again, in the absence of clarity about the professional commitments of
medicine, proponents sometimes rely on and sometimes disavow claims of
consensus and controversy, adopting a whatever-works strategy in an
attempt to force their desired shape of conformity onto the profession.

The Way of Medicine, by contrast, distinguishes not between the
professional and the personal but between that which fulfills the physician’s
profession and that which departs from or contradicts that profession. In an
important sense, this merely distinguishes the reasonable from the
unreasonable, with attention to the particular vocation of practitioners of
medicine.

Critics worry that physicians’ refusals hide invidious discrimination under
the guise of conscience. Stahl and Emanuel say that to refuse to participate
in “gender reassignment surgery, or the use of contraception . . . is to allow
personal moral judgment to masquerade as medical practice.”³¹ ACOG
contends, “Finally, conscientious refusals should be evaluated on the basis
of their potential for discrimination.”³² But the Way of Medicine can
coherently condemn refusals that involve invidious discrimination without
abandoning either the notion of conscience or the physicians’ commitment
to the patient’s health.

The physician who refuses to care for patients with HIV because of
antipathy toward homosexuals or for patients of another race because of
racial prejudice or for criminals because of revulsion at their crimes violates
the constitutive professional obligation to seek the health of patients
precisely because they are sick, without regard to their other characteristics.
After all, the good of health is good for all persons. The professional
obligation to seek the health of patients is to be contrasted not with
conscience or with personal obligations but instead with failures of reason.
The solution to such failures is, in fact, sound exercise of conscience.

A Greater Respect for Pluralism

In contrast with the PSM, the Way of Medicine presents a workable,
peaceable approach to living with disagreement—with the pluralism that
defines our current age. Stahl and Emanuel, speaking for the PSM, write,
“Health care professionals who are unwilling to accept these limits [to
conscientious refusals] have two choices: select an area of medicine, such
as radiology, that will not put them in situations that conflict with their
personal morality or, if there is no such area, leave the profession.”³³

If the profession followed this logic to its conclusion, it would have to drum
out those who have the audacity to refuse interventions because they are not
required by or conducive to the patients’ health. This is a recipe for a
homogenous and authoritarian healthcare profession, one held together by
the forcible imposition of external norms: the norms of the legally
permitted, the technologically feasible, and what patients desire. Physicians
unwilling to work within these constraints would have to go.

Perhaps paradoxically, the Way of Medicine has much more flexibility. Let
us grant the “fact of reasonable pluralism.”³⁴ There is, we concede, no way
to recover (or forge anew) full agreement on the part of all physicians
regarding the moral obligations of medical practitioners. Nevertheless, if we
imagine a profession structured even minimally on a commitment to
patients’ health, the profession should allow conscientious refusals where
reasoned dispute exists about whether an intervention is consistent with that
goal.

In such circumstances, patients may face clinicians who make clear, in so
many words, that they do not believe what the patient seeks is what the
clinician should be doing. Patients in some areas, particularly rural areas,
may struggle to find clinicians who will provide interventions that are
available elsewhere. The profession will sustain in its ranks an ongoing
contention about what good medicine requires. The presence of differences
will push people to consider why they are making the choices they make
rather than taking practices for granted. Physicians will represent the

diversity of moral communities found in a society, and the range of choices
among philosophies of care will reflect the ongoing moral disagreements
among those communities. When people like Stahl and Emanuel insist that
physicians put their professional obligations first, we will insist that they
make an argument to show how physicians’ commitment to their patients’
health, objectively construed, requires them to participate in the
interventions in question.

We are optimistic that such a profession would come to recognize again that
certain practices are simply incompatible with physicians’ commitment to
patients’ health. Abortion, euthanasia, and sex reassignment surgeries, for
example, would be seen as simply not the business of physicians, though
treatment of pregnant mothers and their infant children, the dying, and those
suffering from gender dysphoria would be. There would still be
considerable room for disagreement, given the complexity of health and the
vagueness and indeterminacy around its boundaries—and that is to say
nothing of the scope for disagreement over how best to address the health of
a particular patient, given the inevitable limitations of medical knowledge
and technology.

The Way of Medicine recognizes that a profession must have something
that its practitioners profess in common; that something, for medicine, is the
patient’s health. The PSM gives, by contrast, a merely formal shared end:
the satisfaction of patients’ desires within what the law and medical science
allow, a goal that will frequently lead physicians to pursue contradictory
ends—for example, the life of this fetus, the death of that one. But within
the pursuit of health, the Way of Medicine sees room for professional
comity and amity: comity when the conscientious judgments of other
physicians are respected and amity when the profession is willing to tolerate
diverse moral and religious views if those are not essentially unjust. That is
a far cry from the PSM’s increasingly aggressive intolerance of
disagreement.

THE FUTURE OF MEDICINE

Elevating the PSM over the Way of Medicine will lead to three logical if
unintended consequences. First, any policy that constrains the scope of
conscientious refusals will thereby erode the possibility of conscientious
practice. It seems obvious that patients want their physicians to be
conscientious insofar as possible. Who wants a physician who is in the habit
of doing what he knows he should not do? Fortunately, individuals from
virtually all moral traditions and communities can conscientiously commit
themselves to caring for the sick. That is one reason the profession of
medicine has been able to maintain prestige and a measure of unity in a
society comprising many different moral communities. Yet efforts to reduce
the scope of conscientious refusals will gradually squeeze out or block from
entry all but those who are willing to make available to patients the full
range of legal technological interventions and to set aside their judgments
about which interventions are congruent with patients’ health.

Consider obstetrics and gynecology. If the PSM prevails, the obstetrics and
gynecology practice of the future will be hospitable only to those willing to
engage in elective abortion, sterilization, contraception, IVF, prenatal
genetic diagnosis, surrogate pregnancy, artificial insemination, cosmetic
genital surgery, gender transition surgery, and whatever comes next. Only a
minority of American physicians can cooperate conscientiously in all of
these legal, feasible, and yet morally controversial practices. Paradoxically,
patients’ choices will be reduced insofar as they will not be able to seek out
trained clinicians who share their judgment that such practices contradict
the purposes of medicine. So the process will go. Every time the scope of
conscientious refusal is narrowed, the pool of people who can be
conscientious physicians is reduced.

The second consequence is that by requiring physicians to do what patients
request, policies that constrain the scope of physician refusals will put
physicians and patients at odds with one another. The PSM already treats
the physician’s judgment as a threat to the patient. If physicians cannot
refuse patient requests, they will wonder when their patients might, with the
backing of legal sanction, ask them to act against their own understanding
and do that which they believe is unethical. By making physicians obey
patients, we will make patients a moral threat to their physicians.

The third consequence of reducing the scope of conscientious refusals is
that patients will lose the basis for trusting that their physicians are
committed to their good. Under the old model of paternalism, patients could
trust that physicians had committed themselves to their patients’ best
interests, albeit in a limited way—only insofar as those interests included
restoring and preserving health. The patients’ rights movement and the
doctrine of informed consent rightly qualified and delimited physicians’
commitment to pursue health. Out of respect for the persons they serve,
physicians are to act only with the permission of their patients. Because
health is neither the only nor the highest good, patients are authorized to
situate that good in relation to other concerns such as not being
overburdened by medical technology.

The PSM differs fundamentally: in it, patients not only qualify how their
health will be pursued but also decide what outcomes and states of affairs
their physicians will seek. Patients gain technicians committed to
cooperation and lose healers committed to their good. They gain control
over physicians but thereby divest physicians of responsibility. As a result,
patients will “often navigate treacherous medical terrain without adequate
medical guidance.”³⁵ Physicians can wash their hands of patients’
decisions, as long as they give their patients accurate information and
provide technically proficient “healthcare services.”

By asking physicians to set aside their consciences and detach from their
historical commitment to their patients’ health, the PSM contributes to a
crisis of medical morale, because the PSM quite literally demoralizes
medicine. If medicine merely provides desired services to maximize
patients’ vision of well-being, medicine’s pretense to moral seriousness will
be a charade and its attempts at professionalism a façade. Is it surprising
that today’s physicians, conditioned to think of themselves largely as mere
functionaries, suffer high rates of burnout?³⁶

There is a better way. That way involves conscientiousness and candor on
the part of physicians. Where there is ambiguity or a dispute arises about
whether a particular practice belongs in medicine, physicians and patients
can do their best to negotiate an accommodation that does not require either
to do what they believe is unethical. Rather than feign moral neutrality,

physicians will tell their patients frankly what their options are, which ones
the physician is willing to offer, and why the physician recommends one
over another. The scope of permissible accommodations will have to be set
through the political process, but we echo the conclusion reached by the
President’s Commission way back in 1982: “Considerable flexibility should
be accorded to patients and professionals to define the terms of their own
relationships.”³⁷

In conclusion, unless and until consensus is forged regarding the ends of
medicine, refusals of controversial practices cannot be shown to violate
physicians’ professional obligations. In the meantime, the practice of
medicine should be open to anyone who is willing to unreservedly commit
him- or herself to caring for the sick so as to preserve and restore their
health.

WORKING FOR HEALTH, CONTENDING FOR MEDICINE

We close by calling for healthcare professionals to strive conscientiously for
their patients’ health and in so doing to contend conscientiously for good
medicine. In some contexts, practicing the Way of Medicine will require
courage, even great courage. Trailblazers must sometimes walk alone. As
Martin Luther King Jr. said, “There comes a time when one must take a
position that is neither safe, nor politic, nor popular, but he must take it
because conscience tells him it is right.”³⁸

We do not suggest that everyone who finds the Way of Medicine
compelling should immediately set out to persuade every proponent of the
PSM that they are in error. Some are called to that task, but certainly not all
are. Nor do we recommend that physicians contend for their “rights”; we
are not advocating the antagonism of “rights talk” or pitting physicians’
rights against those of patients.

Rather, our suggestion is to practice medicine according to reason and to be
prepared to give an account of why you do what you do. Be committed to
the central good of medicine: patient health. Do nothing contrary to that
good, and align your practice to be in harmony with that good. Cultivate the
virtues of good medicine. Be a physician and a healer, not merely a
technician or a provider.

In short, be a good physician, practicing good medicine. Doing so will
function to the good of your patients and to your good as a doctor. It may
also persuade your colleagues and patients. As Leon Kass has noted, the
most basic truths often are better demonstrated in practice than in
argument.³⁹ By pursuing their patients’ health in time-tested ways that
respect the moral law, clinicians show others a better way of caring for their
patients—a way that has an integrity and even a beauty that may win over
those who at present are captive to the PSM.

Clinicians are not alone in this endeavor. This has been a book of medical
ethics, and medical ethicists and policymakers also must discern the shape
of the true practice of medicine and recognize its counterfeits. In providing
resources for that task, we hope to have made a modest contribution to the
renewal of medicine—a moral project that is ever worthy and ever
incomplete.

NOTES

PREFACE

1. David L. Sackett, William M. C. Rosenberg, J. A. Muir Gray, R. Brian
Haynes, and W. Scott Richardson, “Evidence-Based Medicine: What It Is
and What It Isn’t,” British Medical Journal 312, no. 7023 (1996): 71–72.

INTRODUCTION

1. It is important for us to clarify our use of “well-being” here. Our own
moral theory has a substantive account of human flourishing at its
foundations, and such flourishing could equally be designated as a form of
well-being. However, throughout this book, when we use the expression in
italics—well-being—we mean to designate the thin, preference- and desire-
satisfaction model that many medical ethicists presently use. We typically
italicize the first use of the expression in a chapter, and then rely on context
to make it clear which sense of “well-being” we mean.

2. As we discuss further in chapter 1, Beauchamp and Childress’s
enormously influential framework focuses on four principles: beneficence,
nonmaleficence, justice, and autonomy. See Tom L. Beauchamp and James
F. Childress, Principles of Biomedical Ethics, 7th ed. (New York: Oxford
University Press, 2013), 13–14.

3. See Ronit Y. Stahl and Ezekiel J. Emanuel, “Physicians, Not Conscripts
—Conscientious Objection in Health Care,” New England Journal of
Medicine 376, no. 14 (2017): 1380–85.

4. H. Tristram Engelhardt, The Foundations of Bioethics, 2nd ed. (New
York: Oxford University Press, 1996), 7.

5. A 2016 U.S. News & World Report article showed that “nearly half of
U.S. physicians—49 percent—meet the definition for overall burnout.” In
addition, physicians’ “satisfaction with work-life balance is far lower than
that of others: 36 percent versus 61 percent.” See Steve Sternberg,
“Diagnosis: Burnout,” U.S. News & World Report, September 8, 2016. See
also Tait D. Shanafelt, Omar Hasan, Lotte N. Dyrbye, Christine Sinsky,
Daniel Satele, Jeff Sloan, and Colin P. West, “Changes in Burnout and
Satisfaction with Work-Life Balance in Physicians and the General US
Working Population between 2011 and 2014,” Mayo Clinic Proceedings 90,
no. 12 (2015): 1600–1613.

6. Michael J. Balboni and Tracy A. Balboni, Hostility to Hospitality:
Spirituality and Professional Socialization within Medicine (New York:
Oxford University Press, 2019).

7. As will become clear, we see two interrelated disagreements about
medicine: one over whether health should be the primary and largely
exclusive purpose of medicine and one over what health is.

8. Edelstein’s translation renders the Greek well: “I will neither give a
deadly drug to anybody if asked for it, nor will I make a suggestion to this
effect. Similarly I will not give to a woman an abortive remedy” (οὐ δώσω
δὲ όυδὲ ϕάπρμακον οὐδενὶ αἰτηθεὶς θανάσιμον οὐδὲ ὑϕηγήσομαι
ξυμβουλίην τοιήδε· ὁμοίως δὲ ούδὲ γυναικὶ πεσσὸν ϕθόριον δώσω).
Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and
Interpretation (Baltimore, MD: Johns Hopkins University Press, 1943), 2–3.

9. For discussion of this claim in relation to the oath itself, see T. A.
Cavanaugh, Hippocrates’ Oath and Asclepius’ Snake (New York: Oxford
University Press, 2018).

10. C. S. Lewis, The Abolition of Man, or, Reflections on Education with
Special Reference to the Teaching of English in the Upper Forms of
Schools (San Francisco: HarperSanFrancisco, 2001), 43.

11. Gerald P. McKenney, To Relieve the Human Condition: Bioethics,
Technology, and the Body (Albany, NY: State University of New York
[SUNY] Press, 1997), 16. McKenney himself engages dialectically with a
number of previous critics, such as Hans Jonas Leon Kass and Stanley
Hauerwas, from whom we have also learned much.

12. Jeffrey P. Bishop, The Anticipatory Corpse: Medicine, Power, and the
Care of the Dying (Notre Dame, IN: University of Notre Dame Press,
2011).

13. Ibid., 9.

14. “Social imaginary” is a term that Charles Taylor explores in depth in his
Modern Social Imaginaries (Durham, NC: Duke University Press, 2004),
23.

15. Edmund D. Pellegrino, “The Internal Morality of Clinical Medicine: A
Paradigm for the Ethics of the Helping and Healing Professions,” Journal of
Medicine and Philosophy 26, no. 6 (2001): 559–79.

16. McKenney, To Relieve the Human Condition: Bioethics, 16.

17. See Edmund D. Pellegrino, The Philosophy of Medicine Reborn: A
Pellegrino Reader, ed. H. Tristram Engelhardt Jr. and Fabrice Jotterand
(Notre Dame, IN: University of Notre Dame Press, 2008); Leon R. Kass,
“Regarding the End of Medicine and the Pursuit of Health,” Public Interest
4 (1975): 11– 42; Alasdair MacIntyre, After Virtue: A Study in Moral
Theology, 3rd ed. (Notre Dame, IN: University of Notre Dame Press,
2007), 194. See also John Keown’s assessment of John Finnis: “A New
Father for the Law and Ethics of Medicine,” in Robert P. George and John
Keown, Reason, Morality, and Law: The Philosophy of John Finnis
(Oxford: Oxford University Press, 2014), 290–307.

18. See MacIntyre, After Virtue, 222.

CHAPTER ONEThe Way of Medicine

1. Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed.
(Notre Dame, IN: University of Notre Dame Press, 2007), 187.

2. For more on the difference between experiencing one’s work as a job
versus as a calling, see Robert N. Bellah, William M. Sullivan, Richard
Madsen, Ann Swindler, and Steven M. Tipton, Habits of the Heart:
Individualism and Commitment in American Life (Berkeley: University of
California Press, 1985); Amy Wrzesniewski, Clark McCauler, Paul Rozin,
and Barry Schwartz, “Jobs, Careers, and Callings: People’s Relations to
Their Work,” Journal of Research in Personality 31, no. 1 (1997): 21–33;
and Douglas T. Hall and Dawn E. Chandler, “Psychological Success: When
the Career Is a Calling,” Journal of Organizational Behavior 26, no. 2
(2005): 155–76.

3. Aristotle, Nicomachean Ethics, trans. David Ross (New York: Oxford
University Press, 2009), 1094a10.

4. For an introduction to debates about whether medicine has an intrinsic
telos and an internal morality, see the collection of papers on the subject in
the Journal of Medicine and Philosophy 26, no. 6 (2001).

5. See Jean Bethke Elshtain, “Why Science Cannot Stand Alone,”
Theoretical Medicine and Bioethics 29, no. 3 (2008): 161–69.

6. See Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the
Supreme Court, and Buck v. Bell (Baltimore, MD: Johns Hopkins
University Press, 2010).

7. Aristotle, Nicomachean Ethics, 1094b25.

8. See, particularly, Leon Kass, “Regarding the End of Medicine and the
Pursuit of Health,” Public Interest 40 (1975): 11–42. See also Luke
Gormally, “The Good of Health and the Ends of Medicine,” in Holder
Zaborowski, Natural Moral Law in Contemporary Society (Washington,
DC: Catholic University of America Press, 2010), 264–84. Gormally argues
for views of both health and medicine very similar to ours.

9. See Christopher Boorse, “Health as a Theoretical Concept,” Philosophy
of Science 44 (1977): 542–73. Some proponents of an objective account,
such as Boorse, further understand health as merely the absence of disease.
In contrast, we claim that health is a positive quality and is, in this
important sense, prior to disease. Disease is knowable because it causes a
diminishment of health, but health is knowable apart from any disease.
What’s more, health can be diminished even in the absence of disease, as
when a person becomes unhealthy as a consequence of inactivity.
Therefore, the opposite of health is not disease but ill health—the privation
or absence of health.

10. For a discussion of evaluative concepts of health and disease see Jacob
Stegenga, Care and Cure: An Introduction to Philosophy of Medicine
(Chicago: University of Chicago Press, 2018), chaps. 1 and 2.

11. These syndromes include conditions such as chronic fatigue and
fibromyalgia. See Jiwon Helen Shin, John D. Yoon, Kenneth A. Rasinski,
Harold G. Koenig, Keith G. Meador, and Farr A. Curlin, “A Spiritual
Problem? Primary Care Physicians’ and Psychiatrists’ Interpretations of
Medically Unexplained Symptoms,” Journal of General Internal Medicine
28, no. 3 (2013): 392–98.

12. Because humans are ever incomplete, to be human is to be disabled and
dependent in significant measure, even if that dependence and disability are
not socially conspicuous.

13. Gerald P. McKenny, To Relieve the Human Condition: Bioethics,
Technology, and the Body (Albany, NY: State University of New York
[SUNY] Press, 1997).

14. Some have interpreted Kass as disregarding mental health. He was at
pains to distinguish pursuit of happiness from pursuit of health, but in our
view, his account of the well-working of the organism as a whole includes
mental health in the way we offer here.

15. Kass, “Regarding the End of Medicine,” 14; “Constitution of WHO:
Principles,” World Health Organization, April 7, 1948,
https://www.who.int/about/mission/en/.

16. Wendell Berry, “Health Is Membership,” in M. Therese Lysaught,
Joseph Kotva, Stephen E. Lammers, and Allen Verhey, ed. On Moral
Medicine (Grand Rapids, MI: Eerdmans, 2012), 420.

17. “Shalom” translates as “peace,” but, much like the term “health,”
“shalom” can be used analogically to refer to wholeness, completeness, and
blessedness. We find it notable that Jewish tradition requires Jews to live in
a community that has a physician, and although rabbis can also be
physicians—and often have been—Jewish tradition distinguishes the two
roles. See Immanuel Jakovovitz, Jewish Medical Ethics: A Comparative
and Historical Study of the Jewish Religious Attitude to Medicine and Its
Practice (New York: Block Publishing, 1975), 204–13.

18. Or, as Kass puts it, “in accordance with its specific excellences,” in
“Regarding the End of Medicine,” 29.

CHAPTER TWOThe Requirements of Practical Reason

1. Aristotle, Nicomachean Ethics, trans. David Ross (New York: Oxford
University Press, 2009).

2. We think of life and health as constituting one (complex) good. When
health is gone, no life remains. When life is present, some health remains.
In this book, wherever we use the term “health,” we mean this complex
basic good of life and health.

3. A commitment to human goods and human flourishing characterizes
much natural law theory, yet different theorists identify different goods as
basic or fundamental. Our list of basic goods is largely drawn from
Germain Grisez, Joseph Boyle, and John Finnis, “Practical Principles,
Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence 32
(1987): 106–8, which, however, omits marriage. That good is present in
Aquinas’s list in Summa Theologiae, 1–2, q. 94, a.2.

4. For a consequentialist approach to some important questions of medical
ethics, see Helga Kuhse and Peter Singer, Should the Baby Live? The
Problem of Handicapped Infants (Oxford: Oxford University Press, 1985).
John Harris is an important defender of a broadly libertarian-
consequentialist approach to bioethics. See, e.g., Harris, The Value of Life
(New York: Routledge, 1995).

5. For further discussion, see Robert P. George and Christopher Tollefsen,
Embryo: A Defense of Human Life (New York: Doubleday, 2008), chap. 4:
“Moral Philosophy and the Early Human Being,” 83–111.

6. See Rachel Aviv, “What Does It Mean to Die?” New Yorker, February 5,
2018, www.newyorker.com.

7. National Commission for the Protection of Human Subjects of
Biomedical and Behavioral Research, “The Belmont Report,” Department
of Health, Education, and Welfare, April 18, 1979, www.hhs.gov.

8. Beauchamp and Childress’s first edition of Principles of Biomedical
Ethics was published in 1979. The book is now in its seventh edition and
has for decades been the most widely used medical ethics textbook in the
world.

9. Beauchamp refers to all of these as “alleged competitors” of principlism
in “Principlism and Its Alleged Competitors,” Kennedy Institute of Ethics
Journal 5, no. 3 (1995).

10. Beauchamp is quite explicit that there are no absolutes and that the
prohibition against killing is just the sort of prohibition an ethics needs to be
able to overcome (e.g., through compassionate aid-in-dying). See
Beauchamp, “Principlism and Its Alleged Competitors.”

11. Alfonso Gomez-Lobo also makes, and extends, a similar criticism of
principlism in his (with John Keown), Bioethics and the Human Goods: An
Introduction to Natural Law Bioethics (Washington, DC: Georgetown
University Press, 2015).

12. Immanuel Kant, Grounding for the Metaphysics of Morals., trans.
James W. Ellington, 3rd ed. (Indianapolis: Hackett, 1993 [1785]), 36.

13. John Rawls, “The Idea of Public Reason Revisited,” University of
Chicago Law Review 60, no. 3 (1997): 765–807.

14. A 2003 survey of US physicians from all specialties found that 71
percent agreed (32 percent strongly) with the statement “For me, the
practice of medicine is a calling.” See Farr A. Curlin, Lydia S. Dugdale,
John D. Lantos, and Marshall H. Chin, “Do Religious Physicians
Disproportionately Care for the Underserved?” Annals of Family Medicine
5, no. 4 (2007): 353–60. Among those who indicated that they have no
religion, 52 percent agreed (20 percent strongly), and among those who
indicated that they never attend religious services, 56 percent agreed (22
percent strongly) (data unpublished). A 2010 survey of U.S. primary care
physicians and psychiatrists found that more than 80 percent of both groups
agreed (about 40 percent strongly) with the same statement. See John D.
Yoon, Jiwon H. Shin, Andy L. Nian, and Farr A. Curlin, “Religion, Sense
of Calling, and the Practice of Medicine: Findings from a National Survey
of Primary Care Physicians and Psychiatrists,” Southern Medical Journal
108, no. 3 (2015): 189–95. Again, substantial majorities of the unreligious
agreed (more than 65 percent of physicians who report no religious
affiliation, indicate that they have no religion, and/or indicate that they
never attend religious services) (data unpublished).

15. Gaudium et spes, no. 24. See Vatican Council II: The Basic Sixteen
Documents; Constitutions, Decrees, Declarations, rev. ed., ed. Austin
Flannery (Northport, NY: Costello Publishing, 1996), 190.

16. For an accessible introduction to the idea of personal vocation, see
Germain Grisez and Russell Shaw, Personal Vocation: God Calls Everyone
(Huntington, IN: Our Sunday Visitor, 2003).

CHAPTER THREEThe Doctor-Patient Relationship

1. Here we focus on the contributions of Mark Siegler as well as Timothy E.
Quill and Howard Brody, but there have been many critiques of making
patient autonomy the regulative principle for medical ethics. Prominent
contributions to this literature include Carl Schneider, The Practice of
Autonomy: Patients, Doctors, and Medical Decisions (New York: Oxford
University Press, 1998); Ezekiel J. Emanuel and Linda L. Emanuel, “Four
Models of the Physician-Patient Relationship,” Journal of the American
Medical Association 267, no. 16 (1992): 2221–26; and David Thomasma,
“Beyond Medical Paternalism and Patient Autonomy: A Model of
Physician Conscience for the Physician-Patient Relationship,” Annals of
Internal Medicine 98, no. 2 (1983): 243–48.

2. Leon R. Kass, “Regarding the End of Medicine and the Pursuit of
Health,” Public Interest 4 (1975): 11–42.

3. Mark Siegler, “Searching for Moral Certainty in Medicine: A Proposal
for a New Model of the Doctor-Patient Encounter,” Bulletin of the New
York Academy of Medicine 57, no. 1 (1981): 56–69.

4. Ibid., 58.

5. President’s Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, “Making Health Care Decisions:
The Ethical and Legal Implications of Informed Consent in the Patient-
Practitioner Relationship,” October 1982, 35,
https://repository.library.georgetown.edu.

6. Some physicians can fail in this way for a long time and still be quite
useful to patients with respect to health, particularly subspecialists whose
work is more reducible to technique and technological production. One
thinks, for example, of the brain surgeon who is exquisitely committed to
doing a technically proficient job—even a job that deserves to be called
“beautiful,” but who could not care less about his patients’ flourishing. A
patient might reasonably seek out such a surgeon, even over the surgeon
who fasts and prays for the healing of the patients he carries in his heart, if
the latter surgeon is not as technically gifted.

7. Somewhat paradoxically, while the PSM embraces physicians’ engaging
in practices that violate traditional boundaries by damaging health, it also
opposes physicians engaging in practices such as praying with patients,
because these practices, while not injuring health, putatively cross
professional boundaries. See Farr A. Curlin and Daniel E. Hall, “Strangers
or Friends? A Proposal for a New Spirituality-in-Medicine Ethic,” Journal
of General Internal Medicine 20, no. 4 (2005): 370–74, for a deeper
analysis of debates about physicians paying attention to the spiritual
concerns of patients.

CHAPTER FOURAutonomy and Authority

1. The 1979 Belmont Report and the 1982 “Making Health Care Decisions”
report both focused on the importance of informed consent—the former
with respect to the research context, the latter with respect to clinical
practice. See National Commission for the Protection of Human Subjects of
Biomedical and Behavioral Research, “The Belmont Report,” Department
of Health, Education, and Welfare, April 18, 1979, www.hhs.gov. See also
President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, “Making Health Care Decisions: The
Ethical and Legal Implications of Informed Consent in the Patient-
Practitioner Relationship,” October 1982, 35,
https://repository.library.georgetown.edu.

2. Immanuel Kant, Grounding for the Metaphysics of Morals, trans. James
W. Ellington, 3rd ed. (Indianapolis: Hackett, 1993 [1785]), 30.

3. A different formulation of the categorical imperative was cited in chapter
2; Kant believed them to be equivalent despite their apparent differences.

4. For the term “expressive individualism,” see Robert N. Bellah, William
M. Sullivan, Richard Madsen, Ann Swindler, and Steven M. Tipton, Habits
of the Heart: Individualism and Commitment in American Life (Berkeley:
University of California Press, 1985), 27.

5. For an accessible philosophical history of this cultural emphasis on
authentic self-expression and self-development, see Charles Taylor, The
Ethics of Authenticity (Cambridge, MA: Harvard University Press, 1991).

6. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(SCOTUS, 1992), 861.

7. Stephen Darwall, “Two Kinds of Respect,” Ethics 88, no. 1 (1977): 36–
49.

8. Ms. Maynard was a young woman from California who moved to
Oregon to die by physician-assisted suicide. We discuss her case further in
chapter 9. See Britanny Maynard, “My Right to Death with Dignity at 29,”
CNN, November 2, 2014, www.cnn.com.

9. See, for example, Health Occupations—Conversion Therapy for Minors
—Prohibition (Youth Mental Health Protection Act), Annotated Code of
Maryland, Article—Health Occupations, Section 1–212.1.

10. See Ronit Y. Stahl, and Ezekiel J. Emanuel, “Physicians, Not Conscripts
—Conscientious Objection in Health Care,” New England Journal of
Medicine 376, no. 14 (2017): 1380–85.

11. For further discussion of this point, see Robert P. George, Making Men
Moral: Civil Liberties and Public Morality (Oxford: Oxford University
Press, 1995), chap. 6.

12. Of course, patients’ medical conditions frequently impair their
autonomy, sometimes to the point that they cannot be said to be self-
governing. How physicians should respond to and care for such patients is a
topic we return to in chapter 8.

13. John Finnis, Natural Law and Natural Rights (Oxford: Oxford
University Press, 2011), 232.

14. Mark Siegler, “Searching for Moral Certainty in Medicine: A Proposal
for a New Model of the Doctor-Patient Encounter,” Bulletin of the New
York Academy of Medicine 57, no. 1 (1981): 56–69.

15. For further discussion of this question, see Joseph Boyle, “Personal
Responsibility and Freedom in Health Care: A Natural Law Perspective,” in
Persons and Their Bodies: Rights, Responsibilities, Relationships, ed. Mark
Cherry (Dordrecht, Netherlands: Springer, 1999): 111–41.

16. We return to these ideas in our discussion of medical decisions at the
end of life in chapters 8 and 9.

17. See Timothy E. Quill and Howard Brody, “Physician Recommendations
and Patient Autonomy: Finding a Balance between Physician Power and
Patient Choice,” Annals of Internal Medicine 125, no. 9 (1996): 763–69.

CHAPTER FIVEThe Rule of Double Effect

1. Are there other standards? We think that there are, but that many
standards are in one way or another reducible to fairness or vocation. So,
for example, one’s having promised something bears on what is and is not a
proportionate reason for doing that thing; but the importance of promising
clearly is related to both fairness and vocation.

2. In some cases, prioritizing is built into a good’s nature. Marriage, for
example, requires prioritizing marriage above some other goods, and the
good of religion, as we argue, requires that religion be put before all other
commitments.

3. This way of understanding intention is simpler than that put forth by
some philosophers, who, with Thomas Aquinas, identify an “interior
object” and an “exterior object” of the human act roughly, where we talk
only about “ends” and “means.” Nevertheless, we think that our concept
largely tracks traditional natural law discussions of intention. Aquinas
himself frequently speaks as we do: intention encompasses the end and the
means. This simplicity bears fruit, as we discuss below, in our simple
formulation of the rule of double effect.

4. Fairness may seem obvious. But vocation? We think so, as it may be that
the explorers, recognizing the need for teamwork and trust, have solemnly
promised to one another to “leave no man behind” even if by keeping this
promise they will all die. Our point is not that such a commitment is wise
but that commitments can specify obligations that reasonably prevent us
from doing what we would do if we had not made such commitments.

5. Christopher Tollefsen, “Is a Purely First Person Account of Human
Action Defensible?” Ethical Theory and Moral Practice 9, no. 4 (2006):
441–60, and Tollefsen, “Double Effect and Two Hard Cases in Medical
Ethics,” American Catholic Philosophical Quarterly 89, no. 3 (2015): 407–
20.

6. Sulmasy and Pellegrino describe these four conditions in the following
way: “The traditional rule of double effect specifies that an action with 2
possible effects, one good and one bad, is morally permitted if the action:
(1) is not in itself immoral, (2) is undertaken only with the intention of
achieving the possible good effect, without intending the possible bad effect
even though it may be foreseen, (3) does not bring about the possible good
effect by means of the possible bad effect, and (4) is undertaken for a
proportionately grave reason.” Daniel P. Sulmasy and Edmund D.
Pellegrino, “The Rule of Double Effect: Clearing Up the Double Talk,”
Archives of Internal Medicine 159, no. 6 (1999): 545–50.

7. See, for example, Timothy E. Quill, Rebecca Dresser, and Dan W. Brock,
“The Rule of Double Effect—A Critique of Its Role in End-of-Life
Decision Making,” New England Journal of Medicine 337, no. 24 (1997):
1768–71.

CHAPTER SIXSexuality and Reproduction

1. The FDA approved the first oral contraceptive in 1960. For a history of
the oral contraceptive, see Bernard Asbell, The Pill: A Biography of the
Drug That Changed the World (New York: Random House, 1995).

2. Mark Siegler and Dudley Goldblatt, “Clinical Intuition: A Procedure for
Balancing the Rights of Patients and the Responsibilities of Physicians,” in
The Law—Medicine Relation: A Philosophical Exploration, ed. S. F.
Spicker, J. M. Healey, and H. T. Engelhardt (Dordrecht, Netherlands:
Springer, 1981), 25–26.

3. See T. A. Cavanaugh, Hippocrates’ Oath and Asclepius’ Snake (New
York: Oxford University Press, 2018), chap. 1.

4. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(SCOTUS, 1992), 856.

5. Part of the argument for contraception is that it will reduce the number of
abortions by reducing the number of unplanned pregnancies. That seems
intuitive enough, but evidence suggests that abortion rates decline only
among users of contraception methods that have very low failure rates and
make few demands on users (e.g., intrauterine devices and implantable
contraceptives). More common methods, including the oral contraceptive
pill, do not seem to reduce abortion rates, and in some cases are associated
with higher abortion rates. See William Saletan, “Does Contraception
Reduce Abortions?” Slate, September 1, 2015, www.slate.com.

6. A prominent website for these practitioners states, “Unlike common
suppressive or destructive approaches, NaProTECHNOLOGY works
cooperatively with the procreative and gynecologic systems. When these
systems function abnormally, NaProTECHNOLOGY identifies the
problems and cooperates with the menstrual and fertility cycles that correct
the condition, maintain the human ecology, and sustain the procreative
potential” (emphasis in original). See “NaProTECHNOLOGY,” Pope Paul
VI Institute for the Study of Human Reproduction,
www.naprotechnology.com/.

7. Oliver O’Donovan, Ali Al Chami, and Melanie Davies, “Ovarian
Hyperstimulation Syndrome,” Obstetrics, Gynaecology, and Reproductive
Medicine 25, no. 2 (2015): 43–48.

8. See Christopher Tollefsen, “In Vitro Fertilization Should Not Be an
Option for a Woman,” in Contemporary Debates in Bioethics, ed. Arthur L.

Caplan and Robert Arp (Chichester, UK: John Wiley & Sons, 2014), 451–
59.

9. What Jules and patients like him hope for must be distinguished, of
course, from medical attempts to repair damaged secondary sex
characteristics and sexual capacities, including attempts to resolve sex
ambiguity. More on that below.

10. This distinction has applications outside the natural order also. For
example, Thomas Aquinas gives us an account of law as an ordinance of
reason, given by one with authority, for the common good, and
promulgated. This is the paradigm case, law in good working order. But it is
easy to find examples of law that do not share all these features of the
paradigm. To pick an obvious example, Jim Crow laws that enforced
segregation in the American South did not display these features and as
such do not stand as evidence of the diversity of law, properly understood,
as much as one among many sordid examples of the distortion of law into
something that has the appearance of law but contradicts its purpose. Our
capacity to recognize this distinction makes it possible for us to see how
unjust laws can, in many circumstances, be justly broken.

11. Kenneth Miller, “Together Forever,” LIFE, April 1, 1996, 44–54.

12. Congenital vaginal agenesis is a rare condition (experienced by about 1
in 4,000 females) in which a vagina does not form properly before birth.
Reconstructive surgeries can be performed to fashion a vagina. See G.
Creatsas and E. Deligeoroglou, “Vaginal Aplasia and Reconstruction,” Best
Practice and Research: Clinical Obstetrics and Gynaecology 24, no. 2
(2010): 185–91. In addition, penis transplant patients have successfully
recovered urinary and sexual function. See
https://www.reuters.com/article/us-safrica-transplant/worlds-first-penis-
transplant-patient-to-father-a-child-idUSKBN0OS1HW20150612.

13. For this reason, we believe, with Paul McHugh, that it was an error for
physicians at institutions such as Johns Hopkins to attempt to help males
born with abnormal genitalia by constructing female “genitalia” and
treating these young boys like girls. Such surgeries did not correct a
deficiency in physical health and arguably generated significant mental

health problems for their subjects. See Paul R. McHugh, “Surgical Sex,”
First Things 147 (2004): 34–38.

14. Obviously sex-change surgeries irreversibly damage the reproductive
capacities of patients, but even administering hormones to delay or block
puberty can lead to irreversible damage to patients like Jules. Indeed, at
present there is no reliable way to suppress pubertal development in males
without the risk of rendering the patients permanently sterile.

15. A paradigmatic example of this charge among practitioners of the new
medicine is found in Ronit Y. Stahl and Ezekiel J. Emanuel, “Physicians,
Not Conscripts: Conscientious Objection in Health Care,” New England
Journal of Medicine 376, no. 14 (2017): 1382. We discuss Stahl and
Emanuel at length in chapter 10. For the Obama administration’s Health
and Human Services mandate asserting that it is unlawful to categorically
refuse to participate in gender transition services, see Department of Health
and Human Services, “Nondiscrimination in Health Programs and
Activities,” Federal Register 81, no. 96 (2016): 31376–473.

CHAPTER SEVENAbortion and Unborn Human Life

1. The American College of Obstetricians and Gynecologists’ official
policy on abortion says that “induced abortion is an essential component of
women’s health care.” See “Abortion Policy,” July 2011, www.acog.org.

2. Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and
Interpretation (Baltimore, MD: Johns Hopkins University Press, 1943), 3.

3. W. H. S. Jones. The Doctor’s Oath: An Essay in the History of Medicine
(New York: Cambridge University Press, 1924), 23.

4. On human rights and the 1948 Geneva Declaration, see Andreas Frewer,
“Human Rights from the Nuremberg Doctors Trial to the Geneva
Declaration: Persons and Institutions in Medical Ethics and History,”

Medical Health Care and Philosophy 13 (2010): 259–68. For a discussion
of the changes made in the most recent revision of the declaration, see
Ramin Walter Parsa-Parsi, “The Revised Declaration of Geneva: A
Modern-Day Physician’s Pledge,” Journal of the American Medical
Association 318, no. 20 (2017): 1971–72. For past versions of the
declaration, see World Medical Association, “Declaration of Geneva,”
www.wma.net.

5. The American Medical Association’s current position on abortion is terse
and noncommittal: “The issue of support of or opposition to abortion is a
matter for members of the AMA to decide individually, based on personal
values or beliefs. The AMA will take no action which may be construed as
an attempt to alter or influence the personal views of individual physicians
regarding abortion procedures.” American Medical Association, “Abortion
H-5.990,” last modified 2009, https://policysearch.ama-assn.org.

6. Keith L. Moore, T. V. N. Persaud, and Mark G. Torchia, The Developing
Human: Clinically Oriented Embryology, 10th ed. (Philadelphia: Elsevier,
2016), 11.

7. For interesting evidence regarding this point, see Helen Pearson, “Your
Destiny, from Day One,” Nature 418, no. 6893 (2002): 14–15.

8. See, in particular, Robert P. George and Christopher Tollefsen, Embryo:
A Defense of Human Life, 2nd ed. (Princeton, NJ: Witherspoon Institute,
2011).

9. On December 10, 1948, the United Nations ratified the Universal
Declaration of Human Rights. See United Nations, “Universal Declaration
of Human Rights,” www.ohchr.org.

10. See Martin Rhonheimer, Vital Conflicts in Medical Ethics: A Virtue
Approach to Craniotomy and Tubal Pregnancies, ed. William F. Murphy
(Washington, DC: Catholic University of America Press, 2009).

11. Judith Jarvis Thomson, “A Defense of Abortion” Philosophy & Public
Affairs 1, no. 1 (1971): 47–66.

12. Ibid., 48.

13. Ibid.

14. See Jeffrey Reiman’s discussion of the constitutional right to abortion in
Critical Moral Liberalism: Theory and Practice (Lanham, MD: Rowman
and Littlefield, 1996). John Finnis criticizes Reiman’s position in “Public
Reason, Abortion, and Cloning,” Valparaiso University Law Review 32
(1998): 361–82.

15. Consider, for example, a mother with no other children, who has a
loving husband, strong family support, and a strong devotion to unborn
human life; she works, let us suppose, for a pro-life counseling group. Such
a mother (but not only such a one) could, we think, reasonably choose in
favor of saving the baby’s life. She would be assured the child would be
loved and well cared for, and her calling to pro-life witness could lead her
reasonably to this choice. But another mother, equally devoted to the
unborn but with several other children in need of maternal care, might, in
her circumstances, choose in favor of saving her own life. The decision, we
stress, is up to her, and she is not without resources for guidance in making
that decision. But we think there are limited external grounds on which a
third party could criticize one or the other choice.

16. St. Joseph’s Hospital and Medical Center, “Bishop Olmsted
Announcement: Frequently Asked Questions,” accessed May 7, 2018,
www.dignityhealth.org.

17. Nicanor Pier Giorgio Austriaco, “Abortion in a Case of Pulmonary
Arterial Hypertension,” National Catholic Bioethics Quarterly 11, no. 3
(2011): 514.

18. For a comparison of the effects on fertility of salpingotomy and
salpingectomy, see Femke Mol, Norah M. van Mello, Annika Strandell,
Karin Strandell, and Davor Jurkovic, “Salpingotomy versus Salpingectomy
in Women with Tubal Pregnancy,” Lancet 383, no. 9927 (2014): 1483–89,
and Xiaolin Cheng, Xiaoyu Tian, Zhen Yan, Mengmeng Jia, Jie Deng, Ying
Wang, and Dongmei Fan, “Comparison of the Fertility Outcome of
Salpingotomy and Salpingectomy in Women with Tubal Pregnancy: A

Systematic Review and Meta-Analysis,” PLoS One 11, no. 3 (2016):
e0152343. For the American College of Obstetricians and Gynecologists’
recommendations, see “ACOG Practice Bulletin: Clinical Management
Guidelines for Obstetrician-Gynecologists, no. 193,” Obstetrics and
Gynecology 131 (2018): 91–103, www.acog.org.

19. For an argument, which seems sound to us, that the use of methotrexate
does not necessarily involve intentional killing, see Christopher Kaczor,
“The Ethics of Ectopic Pregnancy: A Critical Reconsideration of
Salpingotomy and Methotrexate,” Linacre Quarterly: A Journal of the
Philosophy and Ethics of Medical Practice 76 (2009): 265–82.

CHAPTER EIGHTMedicine at the End of Life

1. Leon R. Kass, “Regarding the End of Medicine and the Pursuit of
Health,” Public Interest 4 (1975): 18.

2. World Health Organization, “WHO Definition of Palliative Care,”
www.who.int.

3. See Timothy E. Quill, Bernard Lo, and Dan W. Brock, “Palliative
Options of Last Resort: A Comparison of Voluntarily Stopping Eating and
Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary
Active Euthanasia,” Journal of the American Medical Association 278, no.
23 (1997): 2099–104; Pieter J. J. Sauer and Eduard Verhagen, “The
Groningen Protocol—Euthanasia in Severely Ill Newborns,” New England
Journal of Medicine 352, no. 10 (2005): 959–62.

4. National Hospice and Palliative Care Organization, “Preamble to
NHPCO Standards of Practice,” www.nhpco.org.

5. Atul Gawande, Being Mortal: Medicine and What Matters in the End
(New York: Metropolitan Books, 2014).

6. A 2006 study found that “on average, patient-designated and next-ofkin
surrogates incorrectly predict patients’ end-of-life treatment preferences in
one third of cases” (David I. Shalowitz, Elizabeth Garrett-Mayer, and David
Wendler, “The Accuracy of Surrogate Decision Makers,” Archives of
Internal Medicine 166, no. 5 (2006): 497. In addition, Sharma et al. found
that family members are also highly inaccurate in predicting how their
loved ones want decisions to be made. See Rashmi K. Sharma, Mark T.
Hughes, Mari T. Nolan, Carrie Tudor, Joan Kub, Peter B. Terry, and Daniel
P. Sulmasy, “Family Understanding of Seriously Ill Patient Preferences for
Family Involvement in Healthcare Decision Making,” Journal of General
Internal Medicine 26, no. 8 (2011): 881–86.

7. The Hippocratic tradition affirmed that the physician should
acknowledge and respect the limits of medicine. Consider this statement
attributed to Hippocrates in “The Art”: “For if a man demand from an art a
power over what does not belong to the art, or from nature a power over
what does not belong to nature, his ignorance is more allied to madness
than to lack of knowledge. For in cases where we may have the mastery
through the means afforded by a natural constitution or by an art, there we
may be craftsmen, but nowhere else. Whenever therefore a man suffers
from an ill which is too strong for the means at the disposal of medicine, he
surely must not even expect that it can be overcome by medicine.”
Hippocrates, “The Art,” in Hippocrates, vol. 2, trans.W. H. S. Jones
(Cambridge, MA: Harvard University Press, 1923), 204–5.

CHAPTER NINELast-Resort Options

1. For a discussion of the good of solidarity in this context, see Joseph
Boyle, “A Case for Sometimes Tube-Feeding Patients in Persistent
Vegetative State,” in Euthanasia Examined: Ethical, Clinical, and Legal
Perspectives, ed. John Keown (Cambridge: Cambridge University Press,
1995), 189–99.

2. See Alan Meisel, Bernard Lo, Timothy E. Quill, and Dan W. Brock,
“Last-Resort Options for Palliative Sedation,” Annals of Internal Medicine
151, no. 6 (2009): 421–24, and, from earlier, Timothy E. Quill, Bernard Lo,
and Dan W. Brock, “Palliative Options of Last Resort: A Comparison of
Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-
Assisted Suicide, and Voluntary Active Euthanasia,” Journal of the
American Medical Association 278, no. 23 (1997): 2099–104.

3. See Farr A. Curlin, “Palliative Sedation: Clinical Context and Ethical
Questions,” Theoretical Medicine and Bioethics 39, no. 3 (2018): 197–209.

4. Ira Byock, Dying Well: Peace and Possibilities at the End of Life (New
York: Riverhead Books, 1998), 193–216.

5. Ibid., 215.

6. For an elaboration of this account of suffering, see Christopher Tollefsen,
“Suffering, Enhancement, and Human Goods,” Quaestiones Disputatae 5
(2015): 104–17.

7. Lord Marchmain’s conversion occurs in the final chapter of Evelyn
Waugh’s Brideshead Revisited (New York: Back Bay Books, 1999). The
miniseries, directed by Charles Sturridge, was produced by Granada
Television and released in 1981.

8. See Curlin, “Palliative Sedation.”

9. Arthur Caplan, “Bioethicist Caplan: Brittany Maynard Did Nothing
Unethical,” USA Today, November 4, 2014, www.usatoday.com.

10. See Oregon Public Health Division, “Oregon’s Death with Dignity Act
—2014,” Oregon Health Authority, www.oregon.gov.

11. Brittany Maynard, “My Right to Death with Dignity at 29,” CNN,
November 2, 2014, www.cnn.com.

12. Oregon Public Health Division, “Oregon’s Death with Dignity Act—
2014.”

13. Ibid.

14. Anthony L. Back, Timothy E. Quill, and Susan D. Block, “Responding
to Patients Requesting Physician-Assisted Death: Physician Involvement at
the Very End of Life,” Journal of the American Medical Association 315,
no. 3 (2016): 245–46.

15. See www.compassionandchoices.org.

16. Center for Health Statistics and Informatics, “End of Life Option Act,”
California Department of Public Health, www.cdph.ca.gov.

17. Ian Lovett and Richard Pérez-Peña, “California Governor Signs
Assisted Suicide Bill into Law,” New York Times, October 5, 2015,
www.nytimes.com.

18. Robert A. Burt, “The Suppressed Legacy of Nuremberg,” Hastings
Center Report 26, no. 5 (1996): 33.

19. Ibid.

20. The patient’s name and some details have been altered to preserve
confidentiality.

21. Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and
Interpretation (Baltimore, MD: Johns Hopkins University Press, 1943, 3.

22. American Medical Association, “Physician Assisted Suicide H-
140.952,” last modified 2009, https://policysearch.ama-assn.org.

23. Public Health Division, “Oregon Death with Dignity Act, 2017, Data
Summary,” Oregon Health Authority, February 9, 2018, www.oregon.gov.

24. Disease Control and Health Statistics Division, “Washington State
Death with Dignity Act Report,” Washington State Department of Health,
March 2018, www.doh.wa.gov.

25. Black Americans are significantly less likely to use hospice services.
The 2016 “Facts and Figures” published by the National Hospice and

Palliative Care Organization and revised in 2018 shows that 8.2 percent of
Medicare hospice patients were African American, compared to 86.8
percent who were white. See “Facts and Figures: Hospice Care in
America,” National Hospice and Palliative Care Organization, revised April
2018, www.nhpco.org. See also Kimberly S. Johnson, Maragatha
Kuchibhatla, and James A. Tulsky, “What Explains Racial Differences in
the Use of Advance Directives and Attitudes toward Hospice Care?,”
Journal of the American Geriatrics Society 56, no. 10 (2008): 1953–58.

26. Diane Coleman, “Assisted Suicide Laws Create Discriminatory Double
Standard for Who Gets Suicide Prevention and Who Gets Suicide
Assistance: Not Dead Yet Responds to Autonomy, Inc.,” Disability and
Health Journal 3 no. 1 (2010): 39–50.

27. Richard M. Zaner, A Critical Examination of Ethics in Health Care and
Biomedical Research (Dordrecht, Netherlands: Springer, 2015), 30–32.

CHAPTER TENConscientious Medicine

1. These arguments lean heavily on a moral distinction and tension between
the personal and the professional, whether posed as personal moral values
versus professional ethical obligations, personal conscience versus
professional conscience, or duties related to personal versus professional
integrity. For prominent examples of such arguments, see Julian Savulescu,
“Conscientious Objection in Medicine,” British Medical Journal 332
(2006): 294–97; Julian Savulescu and Udo Schuklenk, “Doctors Have No
Right to Refuse Medical Assistance in Dying, Abortion or Contraception,”
Bioethics 31, no. 3 (2017): 162–70; Udo Schuklenk and Ricardo Smalling,
“Why Medical Professionals Have No Moral Claim to Conscientious
Objection Accommodation in Liberal Democracies,” in Journal of Medical
Ethics 43, no. 4 (2017): 234–40; Robert F. Card, “Reasonability and
Conscientious Objection in Medicine: A Reply to Marsh and an Elaboration
of the Reason-Giving Requirement,” Bioethics 28, no. 6 (2014): 320–26;
Eva LaFollette and Hugh LaFollette, “Private Conscience, Public Acts,”

Journal of Medical Ethics 33, no. 5 (2007): 249–54; Howard Brody and
Susan S. Night, “The Pharmacist’s Personal and Professional Integrity,”
American Journal of Bioethics 7, no. 6 (2007): 16–17.

2. Ronit Y. Stahl and Ezekiel J. Emanuel, “Physicians, Not Conscripts—
Conscientious Objection in Health Care,” New England Journal of
Medicine 376, no. 14 (2017): 1380–85.

3. The Professional Obligations and Human Rights policy was issued by the
College of Physicians and Surgeons of Ontario, which has state-sanctioned
authority over medical practitioners. The college published a fact sheet to
explain the policy, www.cpso.on.ca. See The Christian Medical and Dental
Society of Canada v. College of Physicians and Surgeons of Ontario, 2018
ONSC 579, www.canlii.org.

4. Illinois General Assembly, Public Act 099-0690, SB 1564, July 29, 2016,
www.ilga.gov.

5. “Swedish Anti-Abortion Midwife Loses Court Case,” BBC, April 13,
2017.

6. Stahl and Emanuel, “Physicians, Not Conscripts,” 1382.

7. Ibid., emphasis added.

8. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385: The Limits of Conscientious Refusal in
Reproductive Medicine,” Obstetrics & Gynecology 110, no. 5 (2007): 1205,
emphasis added.

9. Stahl and Emanuel, “Physicians, Not Conscripts,” 1383.

10. Eva LaFollette and Hugh LaFollette, “Private Conscience, Public Acts,”
Journal of Medical Ethics 33, no. 5 (2007): 249–54.

11. Howard Brody and Susan S. Night, “The Pharmacist’s Personal and
Professional Integrity,” American Journal of Bioethics 7, no. 6 (2007): 16–
17.

12. Stahl and Emanuel, “Physicians, Not Conscripts,” 1383.

13. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385,” 1205.

14. Dan W. Brock, “Conscientious Refusal by Physicians and Pharmacists:
Who Is Obligated to Do What, and Why?,” Theoretical Medicine and
Bioethics 29, no. 3 (2008): 187–200.

15. On page 1205 of the “ACOG Committee Opinion No. 385,” they write,
“The third criterion for evaluating authentic conscientious refusal is the
scientific integrity of the facts supporting the objector’s claim. Core to the
practice of medicine is a commitment to science and evidence-based
practice.”

16. Stahl and Emanuel argue that those who refuse patient requests should
be treated like conscientious objectors to military service, who “are required
to perform alternative service.” Stahl and Emanuel, “Physicians, Not
Conscripts,” 1383.

17. “The military conscientious objector faced real penalties—fines,
imprisonment, or alternative service—for resisting conscription.” Stahl and
Emanuel, “Physicians, Not Conscripts,” 1384.

18. Julian Savulescu, “Conscientious Objection in Medicine,” British
Medical Journal 332 (2006): 294.

19. Thomas Aquinas, Summa Theologiae, 1-1, q.79, aa12, 13.

20. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385,” 1204.

21. In response to pharmacists who refused to fill prescriptions for
emergency contraception, before the FDA made the drug available over the
counter, Brody and Night wrote that they “suspect that what the
‘conscientious’ pharmacist actually objects to, but does not have the nerve
to say outright, is the possibility that a woman can engage in sexual activity
without having to face the ‘moral’ consequences of her potentially illicit

act.” Brody and Night, “Pharmacist’s Personal and Professional Integrity,”
17.

22. Thomasma defines the conscience of the physician as prudential
judgment, adding, “Prudential judgment encompassing medical and value
factors in the physician-patient relation is a hallmark of professional
conduct.” David Thomasma, “Beyond Medical Paternalism and Patient
Autonomy: A Model of Physician Conscience for the Physician-Patient
Relationship,” Annals of Internal Medicine 98, no. 2 (1983): 244.

23. Stahl and Emanuel, “Physicians, Not Conscripts,” 1380.

24. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385,” 1205, emphasis added.

25. Stahl and Emanuel, “Physicians, Not Conscripts,” 1384.

26. Consider this statement in “ACOG Committee Opinion No. 385”:
“Although respect for conscience is a value, it is only a prima facie value,
which means it can and should be overridden in the interest of other moral
obligations that outweigh it in a given circumstance” (1207).

27. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385,” 1204.

28. Stahl and Emanuel, “Physicians, Not Conscripts,” 1382.

29. Ibid., 1380–81.

30. Ibid, 1383.

31. Ibid.

32. American College of Obstetricians and Gynecologists, “ACOG
Committee Opinion No. 385,” 1206.

33. Stahl and Emanuel, “Physicians, Not Conscripts,” 1383.

34. See John Rawls, Political Liberalism (New York: Columbia University
Press, 1993).

35. Timothy E. Quill and Howard Brody, “Physician Recommendations and
Patient Autonomy: Finding a Balance between Physician Power and Patient
Choice,” Annals of Internal Medicine 125, no. 9 (1996): 765.

36. See Steve Sternberg, “Diagnosis: Burnout,” U.S. News & World Report,
September 8, 2016. See also Tait D. Shanafelt, Omar Hasan, Lotte N.
Dyrbye, Christine Sinsky, Daniel Satele, Jeff Sloan, and Colin P. West,
“Changes in Burnout and Satisfaction with Work-Life Balance in
Physicians and the General US Working Population between 2011 and
2014,” Mayo Clinic Proceedings 90, no. 12 (2015): 1600–1613.

37. President’s Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, “Making Health Care Decisions:
The Ethical and Legal Implications of Informed Consent in the Patient-
Practitioner Relationship,” October 1982, 38,
https://repository.library.georgetown.edu.

38. Martin Luther King Jr., “A Proper Sense of Priorities” (speech),
February 6, 1968, Washington, DC, text available at
http://www.aavw.org/special_features/speeches_speech_king04.html.

39. This was said to one of the authors (Curlin) in conversation.

INDEX

ability, 48–49

abortion

American Medical Association on, 211n5

autonomy and, 67

beginning of human being’s existence and, 115–17

consent and, 172

contraception and, 208n5

contraception vs., 98–99

defining, 126

in ectopic pregnancy, 126, 129–31

embryology and, 116–17

end-of-life killing vs., 172–73

Golden Rule and, 118

Hippocratic Oath and, 113–14

intention and, 120–21, 128, 130

justice and, 112

life-saving, 124–29

personhood and, 121–24

privacy and, 119–20

in provider of services model, 112, 119

as public matter, 119–20

rule of double effect and, 124–29

as self-defense, 129

in Way of Medicine, 113–14

See also contraception

advance directives, 58–59, 146–47. See also end-of-life medicine; last-
resort options

ANH. See artificial nutrition and hydration (ANH)

anorexia, 110

antibiotics, 56–58, 85–87

Anticipatory Corpse, The (Bishop), 9

Aquinas, Thomas, 129, 187, 203n3, 207n3, 209n10

Aristotle, 8, 20–21, 25, 34, 107, 188

artificial nutrition and hydration (ANH), 160–65

assisted reproduction, 99–104

assisted suicide, 69–70, 170–72. See also end-of-life medicine; last-resort
options

Austriaco, Nicanor, 128

authenticity, 67, 119, 141

authority

autonomy vs., 72–73, 76–77

end-of-life medicine and, 139, 150

of expertise, 73

limits of, 77–78

in provider of services model, 3, 75

solidarity and, 63

vocation and, 75–76

in Way of Medicine, 78

autonomy, 205n1

assisted suicide and, 69–70, 170–71

authority vs., 72–73, 76–77

commitments and, 71–72

end-of-life medicine and, 141

as greatest human good, 70

importance of, 70–72

in Kant, 67

in medical ethics, 65–66

misunderstandings about, 66–70

paternalism and, 52

principlism and, 14, 41, 43

in provider of services model, 2, 69

radical, 67–70

respect vs., 44

solidarity and, 62

in Way of Medicine, 69

Bacon, Francis, 8

Beauchamp, Thomas, 14, 41, 43, 199n2, 204nn8–10

Belmont Report, 41, 206n1

beneficence, 14, 41, 43, 55

Bentham, Jeremy, 37

Berry, Wendell, 30

Bishop, Jeffrey, 8–9

Boorse, Christopher, 202n9

Brody, Howard, 77, 205n1, 217n21

Brown, Jerry, 171

Burt, Robert, 171–72, 174

Byock, Ira, 167

calling, 46–47, 204n14

categorical imperative, 43–44, 67, 206n3

Cavanaugh, Thomas, 98

cessation of eating, 165–66

Childress, James, 14, 41, 43, 199n2, 204nn8–9

clinicians. See physician(s)

closeness, intention and, 87–88

Clouser, K. Danner, 42

commitment, 17–20, 46–48, 71–72, 83–84, 89–91, 96, 138–41, 153–57,
185–89

conscience, 3–4, 89, 181, 187–89, 217n22

conscientious medicine

professional responsibility and, 189–92

in provider of services model, 181–85

and refusal of patient requests, 179–87

in Way of Medicine, 185–94

consent, 14, 44, 66, 172, 181, 195, 206n1

consequentialism, 37–38

consumerism, 2

contraception

abortion and, 208n5

abortion vs., 98–99

autonomy and, 54–55

in clinical setting, 94–99

health and, 96–98

justice and, 95

in provider of services model, 55, 94–95

refusal to fill prescriptions for, 217n21

refusal to prescribe, 184

as self-prescribed, 92–93

in Way of Medicine, 96–99

See also abortion

Darwall, Stephen, 67

death. See advance directives; end-of-life medicine

delirium, 97, 167, 169

demoralization, 2–3, 181, 195

Descartes, René, 8

doctor-patient relationship

balance in, 53–54

as community, 62

paternalism in, 52–53

solidarity in, 60–63

trust and, 64

doctors. See physician(s)

do-not-resuscitate (DNR), 58–59. See also advance directives; end-oflife
medicine; last-resort options

double effect. See rule of double effect

DPOAHC. See durable power of attorney for health care (DPOAHC)

durable power of attorney for health care (DPOAHC), 146, 148

dying, autonomy and, 68–70, 206n1. See also end-of-life medicine; last-
resort options

eating, voluntary cessation of, 165–66

ectopic pregnancy, 126, 129–31

Edelstein, Ludwig, 200n8

Emanuel, Ezekiel, 180, 182–83, 190–91, 217n16

embryology, 116–17. See also abortion

end-of-life medicine

advance directives, 58–59

assisted suicide, 69–70

authority and, 139, 150

autonomy and, 141

case study, 151–58

decision-making capacity and, 145–51

health and, 134–36, 142–43

intention and, 151–58

patient options and, 140–42

physician options and, 136–40

proportionality and, 151–58

in provider of services model, 135–36, 143–44, 147, 152

substituted judgment and, 149–50

suffering and, 142–45

in Way of Medicine, 136, 138–40, 147, 152–53, 155–56

See also last-resort options

Engelhardt, H. Tristram, 2, 9

equilibrium, reflective, 42

ethics. See Kantian ethics; medical ethics; practical ethics; practical reason

eugenics, 24

euthanasia, voluntary, 170–72. See also end-of-life medicine; last-resort
options

expertise, authority of, 73

expressive individualism, 67–68

fairness, 40–41, 81–83, 173–74, 207n1

feeding tube. See artificial nutrition and hydration (ANH)

fertility. See contraception; reproduction

Finnis, John, 73

flourishing, 6, 35–36, 71, 199n1, 203n3

Gawande, Atul, 145

gender

autonomy and, 68

transition, 104–10

Gert, Bernard, 42

gestational surrogacy, 102–3

Goldblatt, Anne Dudley, 92–93

Golden Rule, 40–41, 82–83, 118

Gomez-Lobo, Alfonso, 204n11

good(s)

abortion and, 117–18

action and, 35–36

autonomy as, 70

basic, 36, 43, 45

commitments and, 46

common, 60

consequentialism and, 37–38

destruction of, for “greater,” 39–40

in first moral principle, 38–41

internal vs. external, 15–18

practical reason and, 36, 79–80

in provider of services model, 62

rule of double effect and, 79–80

that medicine is for, 20–24

vocation and, 45–50

Hauerwas, Stanely, 9, 200n11

health

absence of suffering vs., 29

activity and, 27

in Aristotle, 20–21

consciousness and, 169

in context of organism, 27–28

contraception and, 96–98

defining, 24–31

end-of-life medicine and, 134–36, 142–43

ethics and, 5–6

as good for which medicine exists, 20–22

as holistic, 26–27

inducements and, 5

mental, 29–30

objectivity and, 25

in provider of services model, 4

risk vs., 28–29

rule of double effect and, 80

wakefulness and, 169

in Way of Medicine, 4–5

women’s, 93

Hippocrates, 213n7

Hippocratic Oath, 5, 21, 42–43, 113–14

holism, 62–63, 143

hospice, 144–45, 215n25. See also end-of-life medicine

humility, 29, 63

hydration, artificial, 160–65

individualism, expressive, 67–68

inducements, 5

informed consent, 181, 195, 206n1

integrity, 61–62

intention, 79–80, 84–88, 120–21, 128, 130, 151–58, 207n3, 208n6

intersex, 106–7

in vitro fertilization (IVF), 100, 103–4

IVF. See in vitro fertilization (IVF)

Jonsen, Albert, 42–43

judgment

in provider of services model, 3–4

substituted, 149–50

justice, 14

abortion and, 112

contraception and, 95

doctor-patient relationship and, 54–55

last-resort options and, 173–74

principlism and, 41

Kant, Immanuel, 66–67

Kantian ethics, 43–45. See also categorical imperative

Kass, Leon, 25, 27, 52, 133–34, 200n11, 202n14

Kennedy, Anthony, 67

King, Martin Luther, Jr., 196

last-resort options

abortion vs., 172–73

and artificial nutrition and hydration, 160–65

fairness and, 173–74

justice and, 173–74

physician-assisted suicide, 170–72

practical reason and, 172–73

in provider of services model, 159–60

sedation to unconsciousness, 166–69

solidarity and, 176

trust and, 174–78

voluntary cessation of eating, 165–66

in Way of Medicine, 159

law, natural, 6, 34–35, 119–20, 203n3, 207n3

Lewis, C. S., 6

life plan, rational, 46–47

living will, 146. See also end-of-life medicine

MacIntyre, Alasdair, 14–15, 19

marriage, 207n2

maximization, 37–38

Maynard, Brittany, 68, 170–71, 176–77, 206n1

McHugh, Paul, 210n13

McKenney, Gerald, 8–9, 200n11, 201n16

McMath, Jahi, 40–41

medical ethics

autonomy in, 65–66

“four principles” of, 2

health and, 5–6

See also practical reason

medicine

as calling, 46–47, 204n14

defined, 2

future of, 194–96

goods for which it exists, 20–24

health as goal of, 20–22

as practice, 4–5, 14–20

provider of services model for, 2–4

Way of Medicine, 4–6

mental health, 29–30, 202n14, 210n13

Mill, John Stuart, 66

Moore, K. L., 116

moral principle, first, 38–41

moral worth, 117–19

NaPro technology, 102

natural law, 6, 34–35, 119–20, 203n3, 207n3

Nazi Germany, 24

Nicomachean Ethics (Aristotle), 34

Night, Susan S., 217n21

nonmaleficence, 14, 41, 43, 53–56, 100, 112, 135–36, 161, 184, 190, 199n2

nutrition, artificial, 160–65

objectivity, 25–26, 202n9

opioids, 89–90, 151

pain medications, 89–90

palliative care, 143–44, 166. See also end-of-life medicine

paternalism, 52–53, 65–66, 94, 195

patients

commitment to, 18

solidarity with, 19, 60–63

vulnerability of, 21–22

See also autonomy; doctor-patient relationship

patients’ rights movement, 51–52

Pellegrino, Edmund, 21, 42, 208n6

Persaud, T. V. N., 116

personhood, 121–24

physician(s)

abortion and, 113–14

authority of, 73

as calling, 47

in end-of-life medicine, 136–40

Golden Rule and, 40

goods received by, for practice, 15–16

paternalism of, 52–53

patients’ rights movement and, 51–52

refusal of patient requests by, 179–87

satisfaction of, with work, 16

solidarity with, 60–63

suffering and, 29

trust of, 22, 64

See also doctor-patient relationship

physician-assisted suicide, 68–70, 170–72, 206n1. See also end-oflife
medicine; last-resort options

physician orders for life-sustaining treatment (POLST), 146

Planned Parenthood v. Casey, 67, 99

pluralism, 79, 192–94

POLST. See physician orders for life-sustaining treatment (POLST)

practical ethics, 34–35

practical reason

conscience and, 187

consequentialism and, 37–38

goods and, 36, 79–80

Kantian ethics and, 43–45

last-resort options and, 172–73

principlism and, 41–45

requirements of, 5–6, 33–50

vocation and, 45–50

practice

defined, 14–15

and internal vs. external goods, 15–18

medicine as, 4–5, 14–20

prayer, 63, 205n7

pregnancy. See abortion; contraception; ectopic pregnancy; reproduction

President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, 53, 196

principlism, 14, 41–45, 82, 95

proceduralism, 54

professional responsibility, 180–81, 186, 188–92

proportionality, 88, 151–58, 208n6

provider of services model (PSM), 2–4

abortion in, 112, 119

advance directives in, 58

antibiotics in, 56–57

artificial nutrition and hydration in, 161

assisted reproduction in, 99–100, 102–3

authority in, 75

autonomy in, 69

conscience and, 188–89

contraception in, 55, 94–95

end-of-life medicine in, 135–36, 143–44, 147, 152

goods in, 62

health in, 4

in historical context, 8–9

last-resort options in, 159–60

paternalism and, 52–53

prayer in, 205n7

principlism in, 14

professional responsibility in, 190

and refusal of patient requests, 181–85

right-is-prior-to-the-good maxim and, 44–45

transgender in, 105–6, 109

Way of Medicine vs., 13–14

PSM. See provider of services model (PSM)

Quill, Timothy E., 77, 171, 205n1

race, hospice use and, 215n25

rational life plan, 46–47

Rawls, John, 44–45

reflective equilibrium, 42

reproduction

assisted, 99–104

topics in, 91

transgender and, 210n14

See also contraception

respect, 44, 63, 67, 117–19

responsibility, professional, 180–81, 186, 188–92

right-is-prior-to-the-good, 44–45

role-conflation harm, 98

rule of double effect

abortion and, 124–29

articulation of, 88

clinical importance of, 89–90

closeness and, 87–88

fairness and, 81–83

goods and, 79–80

health and, 80

intention and, 79–80, 84–88, 207n3, 208n6

principlism and, 82

proportionality and, 88, 208n6

side effects and, 81–88

vocation and, 83–84

Second Vatican Council, 50

sedation to unconsciousness, 166–69

self-defense, 129

shalom, 30, 203n17

side effects, 81–88

Siegler, Mark, 53, 73–74, 92–93, 205n1

solidarity, 19, 59–63, 163, 176

Stahl, Ronit, 180, 182–83, 190–91, 217n16

subspecialization, 61, 205n6

substituted judgment, 149–50

suffering

end-of-life medicine and, 142–45

health vs. absence of, 29

last-resort options and, 167–68

suicide, assisted, 68–70, 170–72, 206n1. See also end-of-life medicine; last-
resort options

Sulmasy, Daniel P., 208n6

surrogacy, gestational, 102–3

surrogate decision-making, 148–51

Tao, 6, 10

Thomasma, David, 21, 42, 217n22

Thomson, Judith Jarvis, 120–21

Torchia, Mark, 116

To Relieve the Human Condition (McKenney), 8–9

Toulmin, Stephen, 42–43

transgender, 68, 210nn13–14

transgender rights, 104–10

trust, 22, 52, 59–60, 64, 174–78

trustworthiness, 18–19

Tuskegee experiments, 24, 36, 40, 82–83

unconsciousness, sedation to, 166–69

utilitarianism, 37

vocation, 45–50, 75–76, 83–84, 141, 204n14, 207n1, 207n4

vulnerability, 21–22, 64, 125, 178

Way of Medicine, 4–6

abortion in, 113–14

advance directives in, 59

antibiotics in, 56–57

artificial nutrition and hydration in, 161–62

assisted reproduction in, 100–104

authority in, 78

autonomy in, 69

contraception in, 55, 96–99

end-of-life medicine in, 136, 138–40, 147, 152–53, 155–56

last-resort options in, 159

pluralism and, 192–94

provider of services model vs., 13–14

reason and, 5–6

refusal of patient requests in, 183, 185–87

sedation to unconsciousness in, 167–68

as tradition, 9–11

transgender in, 106–10

virtues of, 186–94

voluntary cessation of eating in, 166

well-being, 2, 37, 91, 93, 160, 180, 199n1. See also flourishing

will, living, 146. See also end-of-life medicine

women, 92. See also abortion; contraception; reproduction

women’s health, 93

Zaner, Richard, 178

FARR CURLIN is Josiah C. Trent Professor of Medical Humanities at
Duke University. He holds appointments in the School of Medicine; the
Trent Center for Bioethics, Humanities and History of Medicine; the
Divinity School; and the Kenan Institute for Ethics. Curlin has
authored more than one hundred and thirty articles and book chapters
on medicine and bioethics.

CHRISTOPHER TOLLEFSEN is the College of Arts and Sciences
Distinguished Professor of Philosophy at the University of South
Carolina. He is the author and editor of numerous books, including
Embryo: A Defense of Human Life and Lying and Christian Ethics.

  • The Way of Medicine
  • Title
  • Copyright
  • Dedication
  • Contents
  • Preface: A Perplexed Physician
  • Acknowledgments
  • Introduction: A Profession in Crisis
  • One The Way of Medicine
  • Two The Requirements of Practical Reason
  • Three The Doctor-Patient Relationship
  • Four Autonomy and Authority
  • Five The Rule of Double Effect
  • Six Sexuality and Reproduction
  • Seven Abortion and Unborn Human Life
  • Eight Medicine at the End of Life
  • Nine Last-Resort Options
  • Ten Conscientious Medicine
  • Notes
  • Index

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Principles of Biomedical Ethics

EIGHTH EDITION

Tom L. Beauchamp

James F. Childress

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PREFACE TO THE EIGHTH EDITION

Biomedical ethics, or bioethics, was a youthful field when the first edition of this book went to press in late
1977, now over forty years ago. The word bioethics was a recently coined term when, in the mid-1970s, we
began as a team writing in this field and lecturing to health professionals on the subject of moral theory and
principles. The field had virtually no literature that engaged moral theory and methodology. Massive changes
have since occurred both in the field and in this book. We have tried to stay as close to the frontiers of this field
as we could, even though the literature is now sufficiently extensive and rapidly expanding that it is difficult to
keep abreast of new topics under discussion.

For those who have stayed with us through the previous editions of Principles of Biomedical Ethics, we express
our gratitude for your critical and constructive suggestions—for us a constant source of information and insight,
as well as inspiration. Substantial changes have appeared in all editions after the first, and this eighth and
perhaps final edition is no exception. No new changes have been made in the book’s basic structure, but the
revisions are thoroughgoing in every chapter. We have attempted to sharpen our investigations, strengthen our
arguments, address issues raised by critics, and both reference and assess new published material. As in previous
editions, we have made changes in virtually every section and subsection of the book’s ten chapters.

Our clarifications, additions, expansions, and responses to critics can be crisply summarized as follows:

Part I, Moral Foundations: In Chapter 1, “Moral Norms,” we have clarified, augmented, and tightened our
accounts of the common morality, universal morality, and how they differ from particular moralities. We have
also clarified in this chapter and Chapter 10 the ways in which the four-principles framework is to be understood
as a substantive framework of practical normative principles and a method of bioethics. We have had a major
commitment to the virtues and moral character since our first edition. In Chapters 2 and 9 we have clarified and
modestly expanded our discussion of the nature and importance of moral virtues, moral ideals, and moral
excellence; and we have also revised our account of the lines that separate what is obligatory, what is beyond
obligation, and what is virtuous. In Chapter 3, “Moral Status,” we have revised our account of theories of moral
status in several ways and revised our presentation in the section on “Guidelines Governing Moral Status:
Putting Specification to Work.” We also engage some moral problems that have emerged about the use of
human-nonhuman chimeras in biomedical research. We there concentrate on whether functional integration of
human neural cells in a nonhuman primate brain (and the brains of other species) would cause a morally
significant change in the mind of the animal, and, if it did so, what the consequences should be for the moral
status of the animal if it were born.

Part II, Moral Principles: The principles of basic importance for biomedical ethics are treated individually in
Part II. In Chapter 4, “Respect for Autonomy,” we have expanded our presentations in several sections including
addition of an analysis of the distinction between the justification of informed consent requirements and the
several functions served by the doctrine, institutions, and practices of informed consent. Also added is a
significant clarification of our theory of intentional nondisclosure in clinical practice and research and the
conditions under which intentional nondisclosure is justified. In Chapter 5, “Nonmaleficence,” we have updated
and deepened our constructive proposals about “Distinctions and Rules Governing Nontreatment,” proper and
improper uses of the best-interest standard, and the place of anticipated quality of life in decisions regarding
seriously ill newborns and children. The sections on decisions about physician-assisted dying are updated and
arguments adjusted in light of global developments, especially in North America (Canada and several US states).
In Chapter 6, “Beneficence,” we deepened our analysis of policies of expanded and continued access to
investigational products in research as well as our discussions of the ethical value of, concerns about, and
constraints on risk-benefit, cost-benefit, and cost-effectiveness analyses. In Chapter 7, “Justice,” we updated and
expanded the discussions of theories of justice, with restructured presentations of communitarian theories,
capability theories, and well-being theories. Also updated are sections on problems of health insurance coverage,
social implementation of the right to health care, and the right to a decent minimum of health care—as well as
revised analyses of whether individuals forfeit this right through risky actions and what the fair opportunity rule
requires by way of rectifying disparities in health care. Chapter 8, “Professional-Patient Relationships,” has

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expanded sections on “Veracity” and “Confidentiality,” each of which incorporates new cases. The section on
arguments for intentionally limiting communication of bad news has been updated. In particular, we have
deepened our account of when physicians’ decisions to use staged disclosures are ethically justified.

Part III, Theory and Method: Chapter 9, “Moral Theories,” has an expanded section on “Virtue Theory” that fills
out our account of the virtues introduced in Chapter 2 and furthers the application of our theory to biomedical
ethics. We have also augmented and clarified the section on rights theory. Significant additions appear in the
section on “The Rights of Incompetent, Disadvantaged, and Unidentified Members of Populations.” In Chapter
10, “Method and Moral Justification,” we have strengthened our critiques of theories of justification in what we
call top-down models and casuistry. We have also expanded our accounts of common-morality theory, moral
change, reflective equilibrium, considered judgments, and the ways in which our theory is committed to a global
bioethics. Each of these parts has been recast to clarify and deepen our positions.

Finally, we want to correct some long-standing misinterpretations of our theory that have persisted over the forty
years of editions of this book. Several critics have maintained that our book is committed to an American
individualism in which the principle of respect for autonomy dominates all other moral principles and
considerations. This interpretation of our book is profoundly mistaken. In a properly structured account of
biomedical ethics, respect for autonomy has no distinctly American grounding and is not excessively
individualistic or overriding. We do not emphasize individual rights to the neglect or exclusion of social
responsibilities and communal goals. We do not now, and have never, treated the principle of respect for
autonomy in the ways several of our critics allege. To the contrary, we have always argued that many competing
moral considerations validly override this principle under certain conditions. Examples include the following: If
our choices endanger public health, potentially harm innocent others, or require a scarce and unfunded resource,
exercises of autonomy can justifiably be restricted by moral and legal considerations. The principle of respect
for autonomy does not by itself determine what, on balance, a person ought to be free to do or what counts as a
valid justification for constraining autonomy.

Our position is that it is a mistake in biomedical ethics to assign priority a priori to any basic principle over other
basic principles—as if morality is hierarchically structured or as if we must value one moral norm over another
without consideration of particular circumstances. The best strategy is to appreciate the contributions and the
limits of various principles, virtues, and rights, which is the strategy we have embraced since the first edition and
continue throughout this edition. A number of our critics have mistakenly maintained—without textual warrant
—that our so-called principlism overlooks or even discounts the virtues. We have given a prominent place in our
theory—since the first edition—to the virtues and their significant role in biomedical ethics. We maintain and
further develop this commitment in the present edition.

Fortunately, we have always had a number of valuable—and often constructive—critics of our theories,
especially John Arras, Edmund Pellegrino, Raanan Gillon, Al Jonsen, Stephen Toulmin, Michael Yesley,
Franklin Miller, David DeGrazia, Ronald Lindsay, Carson Strong, John-Stewart Gordon, Oliver Rauprich,
Jochen Vollmann, Rebecca Kukla, Henry Richardson, Peter Herissone-Kelly, Robert Baker, Robert Veatch, Tris
Engelhardt, Robert “Skip” Nelson, and Neal W. Dickert. Our book owes a great deal to these critics and friends.
We again wish to remember with great fondness and appreciation the late Dan Clouser, a wise man who seems
to have been our first—and certainly one of our sternest—critics. We also acknowledge the penetrating
criticisms of Clouser’s friend, and ours, the late Bernard Gert, whose trenchant criticisms showed us the need for
clarifications or modifications in our views. We also thank John Rawls for a lengthy conversation, shortly before
his untimely death in 2002, about communitarian and egalitarian theories of justice that led to significant
improvements in our chapter on justice.

We have continued to receive many helpful suggestions for improvements in our work from students,
colleagues, health professionals, and teachers who use the book. Jim is particularly grateful to his University of
Virginia colleagues: the late John Arras, already mentioned; Ruth Gaare Bernheim; Richard Bonnie; and the late
John Fletcher for many illuminating discussions in team-taught courses and in other contexts. Discussions with
many practicing physicians and nurses in the University of Virginia’s Medical Center, on its Ethics Committee,
and with faculty in the Center for Biomedical Ethics and Humanities have been very helpful. In addition, Jim
thanks the faculty and graduate students of the Centre for the Advanced Study of Bioethics at the University of

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Münster for gracious hospitality and vigorous and valuable conversation and debate, particularly about
paternalism and autonomy, especially during extended visits in 2011 and 2016; Bettina Schöne-Seifert, Thomas
Gutmann, and Michael Quante deserve special thanks. Jim also expresses his deep gratitude to Marcia Day
Childress, his wife for the last twenty-two years, for many valuable suggestions along with loving and unstinting
support throughout the preparation of the eighth edition as well as the preceding three editions.

Tom likewise wishes to thank his many colleagues in Georgetown University’s Philosophy Department and
Kennedy Institute of Ethics, as well as his colleagues in research at the Berman Institute of Bioethics of The
Johns Hopkins University. Henry Richardson and Rebecca Kukla have been penetrating, as well as constructive,
critics from whom several editions of this book have greatly benefited. Between the sixth and seventh editions,
Tom benefited hugely from his work with colleagues at Johns Hopkins on an NIH grant to study the need to
revise our understanding of the research–practice distinction: Ruth Faden, Nancy Kass, Peter Pronovost, Steven
Goodman, and Sean Tunis. When one has colleagues this talented and well informed, multidisciplinary work is
as invigorating as it is instructive.

Tom also wishes to express appreciation to five undergraduate research assistants: Patrick Connolly, Stacylyn
Dewey, Traviss Cassidy, Kekenus Sidik, and Patrick Gordon. Their research in the literature, their editing of
copy, and their help with previous indexes have made this book more comprehensive and readable. Likewise,
Jim wishes to thank three superb research and teaching assistants, Matt Puffer, Travis Pickell, and Laura
Alexander, for their helpful contributions. Other teaching assistants in a lecture course at the University of
Virginia that used this book also made valuable suggestions.

We also acknowledge with due appreciation the support provided by the Kennedy Institute’s library and
information retrieval systems, which kept us in touch with new literature and reduced the burdens of library
research. We owe a special debt of gratitude to Martina Darragh, who retired as the last chapter of this eighth
edition was being completed. Martina gave us help when we thought no help could be found.

Retrospectively, we express our gratitude to Jeffrey House, our editor at Oxford University Press for the first
thirty years of this book. Jeff encouraged us to write it before a single page was written, believed in it deeply,
and saw it through all of its formative editions. He was an emulable editor. We also thank Robert Miller for
efficiently facilitating the production of the recent editions of this book.

We dedicate this edition, just as we have dedicated each of the previous seven editions, to Georgia, Ruth, and
Don. Georgia, Jim’s beloved wife of thirty-five years, died in 1994, just after the fourth edition appeared. Our
dedication honors her wonderful memory and her steadfast support for this project from its inception. Tom also
acknowledges the love, devotion, and intellectual contribution to this book of his wife, Ruth Faden, who has
been the deepest influence on his career in bioethics, and salutes Donald Seldin, a brilliant physician and an
inspiration to Tom and to biomedical ethics since the early years of the field. Don passed away at age ninety-
seven in 2018, when we were in the midst of preparing this eighth edition. He will be sorely missed, and never
forgotten.

Washington, DC, and Chilmark, MA T.L.B.

Charlottesville, VA J.F.C.

January 2019

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1

Moral Norms

In the last third of the twentieth century, major developments in the biological and health sciences and in
biomedical technology strikingly challenged traditional professional ethics in much of clinical medicine,
nursing, and biomedical and behavioral research.1 Despite a remarkable continuity in medical ethics across
millennia, the widely revered Hippocratic tradition could not adequately address modern concerns such as
informed consent, privacy, access to health care, communal and public health responsibilities, and research
involving human subjects. Professional ethics was also ill equipped to provide an adequate framework for public
policy in a pluralistic society.

In this book, we acknowledge and draw from the great traditions of medical ethics,2 but we also draw from
philosophical reflections on morality. This approach helps us to examine and, where appropriate, challenge
common assumptions in the biomedical sciences, health care, and public health.

NORMATIVE AND NONNORMATIVE ETHICS

The term ethics needs attention before we turn to the meanings of morality and professional ethics. Ethics is a
generic term covering several different ways of examining and interpreting the moral life. Some approaches to
ethics are normative, others nonnormative.

Normative Ethics

General normative ethics addresses the question, “Which general moral norms should we use to guide and
evaluate conduct, and why?” Ethical theories seek to identify and justify these norms, which are often referred to
as principles, rules, rights, or virtues. In Chapter 9 we examine several types of general normative ethical theory
and offer criteria for assessing them.

Many practical questions would remain unanswered even if a fully satisfactory general ethical theory were
available. The term practical ethics, as used here, is synonymous with applied ethics and stands in contrast to
theoretical ethics.3 Practical ethics refers to the use of moral concepts and norms in deliberations about moral
problems, practices, and policies in professions, institutions, and public policy. Often no direct movement from
general norms, precedents, or theories to particular judgments is possible. General norms are usually only
starting points for the development of more specific norms of conduct suitable for contexts such as clinical
medicine and biomedical research. Throughout this book we address how to move from general norms to
specific norms and particular judgments and from theory to practice.

Nonnormative Ethics

Two types of nonnormative ethics are distinguishable. The first is descriptive ethics, which is the factual
investigation of moral beliefs and conduct. It often uses scientific techniques to study how people reason and act.
For example, anthropologists, sociologists, psychologists, and historians determine which moral norms are
expressed in professional practice, in professional codes, in institutional mission statements and rules, and in
public policies. These researchers study phenomena such as surrogate decision making, treatment of the dying,
the use of vulnerable populations in research, how consents are obtained from patients, and refusal of treatment
by patients.

The second type of nonnormative ethics is metaethics, which involves analysis of the language, concepts, and
methods of reasoning in normative ethics.4 For example, metaethics addresses the meanings of terms such as

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right, obligation, virtue, justification, morality, and responsibility. It is also concerned with moral epistemology
(the theory of moral knowledge), the logic and patterns of moral reasoning and justification, and the nature and
possibility of moral truth. Whether morality is objective or subjective, relative or nonrelative, and rational or
nonrational are prominent questions in metaethics.

Descriptive ethics and metaethics are nonnormative because their objective is to establish what factually or
conceptually is the case, not what ethically ought to be the case or what is ethically valuable. For example, in
this book we often rely on reports in descriptive ethics when investigating the nature of professional conduct and
codes of ethics, current forms of access to health care, and physician attitudes toward hastening the deaths of
patients who have requested aid in dying. In these investigations we are interested in how such descriptive
information assists us in determining which practices are morally justifiable as well as in resolving other
normative issues.

THE COMMON MORALITY AS UNIVERSAL MORALITY

In its most familiar sense, the word morality (a broader term than common morality, which is discussed
immediately below in the section on “The Nature of the Common Morality,” and in more detail in Chapter 10,
pp. 444–57) refers to norms about right and wrong human conduct that are widely shared and form a stable
societal compact. As a social institution, morality encompasses many standards of conduct, including moral
principles, rules, ideals, rights, and virtues. We learn about morality as we grow up, and we learn to distinguish
between the part of morality that holds for everyone and moral norms that bind only members of specific
communities or special groups such as physicians, nurses, or public health officials.

The Nature of the Common Morality

Some core tenets found in every acceptable particular morality are not relative to cultures, groups, or
individuals. All persons living a moral life know and accept rules such as not to lie, not to steal others’ property,
not to punish innocent persons, not to kill or cause harm to others, to keep promises, and to respect the rights of
others. All persons committed to morality do not doubt the relevance and importance of these universally valid
rules. Violation of these norms is unethical and will generate feelings of remorse. The literature of biomedical
ethics virtually never debates the merit or acceptability of these central moral norms. Debates do occur, however,
about their precise meaning, scope, weight, and strength, often in regard to hard moral cases or current practices
that merit careful scrutiny—such as when, if ever, physicians may justifiably withhold some aspects of a
diagnostic finding from their patients.

We call the set of universal norms shared by all persons committed to morality the common morality. This
morality is not merely a morality, in contrast to other moralities.5 It is applicable to all persons in all places, and
we appropriately judge all human conduct by its standards. The following norms are examples (far from a
complete list) of generally binding standards of action (that is, rules of obligation) found in the common
morality: (1) Do not kill, (2) Do not cause pain or suffering to others, (3) Prevent evil or harm from occurring,
(4) Rescue persons in danger, (5) Tell the truth, (6) Nurture the young and dependent, (7) Keep your promises,
(8) Do not steal, (9) Do not punish the innocent, and (10) Obey just laws.

The common morality also contains standards other than obligatory rules of conduct. Here are ten examples of
moral character traits, or virtues, recognized in the common morality (again, not a complete list): (1)
nonmalevolence (not harboring ill will toward others), (2) honesty, (3) integrity, (4) conscientiousness, (5)
trustworthiness, (6) fidelity, (7) gratitude, (8) truthfulness, (9) lovingness, and (10) kindness. These virtues are
universally admired traits of character.6 A person is deficient in moral character if he or she lacks such traits.
Negative traits that are the opposite of these virtues are vices (for example, malevolence, dishonesty, lack of
integrity, cruelty, etc.). They are universally recognized as substantial moral defects. In this chapter we will say
nothing further about moral character and the virtues and vices, because they are investigated in both Chapter 2
and a major section of Chapter 9 (pp. 31–45, 409–16).

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In addition to the obligations and virtues just mentioned, the common morality supports human rights and
endorses moral ideals such as charity and generosity. Philosophers debate whether one of these regions of the
moral life—obligations, rights, or virtues—is more basic or more valuable than another, but in the common
morality there is no reason to give primacy to any one area or type of norm. For example, human rights are not
more basic than moral virtues in universal morality, and moral ideals should not be downgraded morally merely
because people are not obligated to conform to them. An undue emphasis on any one of these areas or types of
norms disregards the full scope of morality.7

Our account of universal morality in this chapter and Chapter 10 does not conceive of the common morality as
ahistorical or a priori.8 This problem in moral theory cannot be adequately engaged until our discussions in
Chapter 10, and we offer now only three clarifications of our position: First, the common morality is a product
of human experience and history and is a universally shared product. The origin of the norms of the common
morality is no different in principle from the origin of the norms of a particular morality for a medical or other
profession. Both are learned and transmitted in communities. The primary difference is that the common
morality has authority in all communities, whereas particular moralities are authoritative only for specific
groups. Second, we accept moral pluralism in particular moralities, as discussed later in this chapter (pp. 5–6),
but we reject moral pluralism, understood as relativism, in the common morality. (See the section in Chapter 10
on “Moral Change” for further clarification.) No particular moral way of life qualifies as morally acceptable
unless it conforms to the standards in the common morality. Third, the common morality comprises moral
beliefs that all morally committed persons believe. It does not consist of timeless, detached standards of truth
that exist independently of a history of moral beliefs. Likewise, every theory of the common morality has a
history of development by the author(s) of the theory.

Ways to Examine the Common Morality

Various statements about or references to the common morality might be understood as normative,
nonnormative, or possibly both. If the appeals are normative, the claim is that the common morality has
normative force: It establishes moral standards for everyone, and violating these standards is unethical. If the
references are nonnormative, the claim is that we can empirically study whether the common morality is present
in all cultures. We accept both the normative force of the common morality and the objective of studying it
empirically.

Some critics of our theory of the common morality (see Chapter 10) have asserted that scant anthropological or
historical evidence supports the empirical hypothesis that a universal common morality exists.9 Accordingly,
they think we need to consider how good the evidence is both for and against the existence of a universal
common morality. This problem is multifaceted and difficult to address, but in principle, scientific research
could either confirm or falsify the hypothesis of a universal morality. It would be absurd to assert that all persons
do in fact accept the norms of the common morality, because many amoral, immoral, or selectively moral
persons do not care about or identify with its moral demands. Our hypothesis is that all persons committed to
morality accept the standards in the common morality.

We explore this hypothesis about the empirical study of the common morality in Chapter 10 (pp. 449–52). Here
we note only that when we claim that the normative judgments found in many parts of this book are derived
from the common morality, we are not asserting that our theory of the common morality gets the common
morality perfectly right or that it interprets or extends the common morality in just the right ways. There
undoubtedly are dimensions of the common morality that we do not correctly capture or depict; and there are
many parts of the common morality that we do not even address.10 When we attempt to build on the common
morality in this book by using it as a basis for critically examining problems of biomedical ethics, we do not
mean to imply that our extensions can validly claim the authority of the common morality at every level of our
interpretation of this morality.

PARTICULAR MORALITIES AS NONUNIVERSAL

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We shift now from universal morality (the common morality) to particular moralities, which contain moral
norms that are not shared by all cultures, groups, and individuals who are committed to morality.

The Nature of Particular Moralities

Whereas the common morality contains moral norms that are abstract, universal, and content-thin (such as “Tell
the truth”), particular moralities present concrete, nonuniversal, and content-rich norms (such as “Make
conscientious oral disclosures to, and obtain a written informed consent from, all human research subjects”).
Particular moralities are distinguished by the specificity of their norms, but these norms are not morally justified
if they violate norms in the common morality. Specific moralities include the many responsibilities, aspirations,
ideals, sentiments, attitudes, and sensitivities found in diverse cultural traditions, religious traditions,
professional practice, and institutional guides. Explication of the values in these moralities sometimes requires a
special knowledge and may involve refinement by experts or scholars over centuries—as, for example, in the
body of Jewish religious, legal, and moral norms in the Talmudic tradition; well-structured moral systems to
provide methods for judgments and to adjudicate conflicts in Roman Catholic casuistry; and Islamic reliance on
Shari’ah-based principles. Each tradition continues today to elaborate its commitments through the development
of detailed, and hopefully coherent, systems of medical ethics. These elaborations are often derived from the
common morality, not merely from the scriptures of a particular religious tradition.

Professional moralities, which include moral codes and standards of practice, are also particular moralities.
They may legitimately vary from other moralities in the ways they handle certain conflicts of interest, research
protocol reviews, advance directives, and similar matters. (See the next section below on “Professional and
Public Moralities.”) Moral ideals such as charitable goals and aspirations to rescue suffering persons in
dangerous situations provide another instructive example of facets of particular moralities. By definition, moral
ideals such as charitable beneficence are not morally required of all persons; indeed, they are not required of any
person.11 Persons who fail to fulfill even their own personal ideals cannot be blamed or criticized by others.
These ideals may nonetheless be critically important features of personal or communal moralities. Examples are
found in physicians’ individual commitments or physician codes that call for assumption of a significant level of
risk in circumstances of communicable disease. It is reasonable to presume that all morally committed persons
share an admiration of and endorsement of moral ideals of generosity and service, and in this respect these ideals
are part of shared moral beliefs in the common morality; they are universally praiseworthy even though not
universally required or universally practiced. When such ideals are regarded by those who embrace them as
obligations (as they are, for example, in some monastic traditions), the obligations are still parts of a particular
morality, not of universal morality.

Persons who accept a particular morality sometimes presume that they can use this morality to speak with an
authoritative moral voice for all persons. They operate under the false belief that their particular convictions
have the authority of the common morality. These persons may have morally acceptable and even praiseworthy
beliefs, but their particular beliefs do not bind other persons or communities. For example, persons who believe
that scarce medical resources, such as transplantable organs, should be distributed by lottery rather than by
medical need may have good moral reasons for their views, but they cannot claim that their views are supported
by the common morality.

Professional and Public Moralities

Just as the common morality is accepted by all morally committed persons, most professions have, at least
implicitly, a professional morality with standards of conduct that are generally acknowledged and encouraged by
those in the profession who are serious about their moral responsibilities. In medicine, professional morality
specifies general moral norms for the institutions and practices of medicine. Special roles and relationships in
medicine derive from rules or traditions that other professions will likely not need or accept. As we argue in
Chapters 4 and 8, rules of informed consent and medical confidentiality may not be serviceable or appropriate
outside of medicine, nursing, biomedical research, and public health, but these rules are justified by general
moral requirements of respecting the autonomy of persons and protecting them from harm.

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Members of professions often adhere to moral guidelines such as rules prohibiting discrimination against
colleagues on the basis of gender, race, religion, or national origin (some of these guidelines now have legal
backing). In recent years formal codifications of and instruction in professional morality have increased through
codes of medical and nursing ethics, codes of research ethics, corporate policies of bioethics, institutional
guidelines governing conflict of interest, and the reports and recommendations of public commissions. Before
we assess these guidelines, the nature of professions in general needs brief discussion.

In a classic work on the subject, Talcott Parsons defines a profession as “a cluster of occupational roles, that is,
roles in which the incumbents perform certain functions valued in the society in general, and, by these activities,
typically earn a living at a full-time job.”12 Under this definition, circus performers, exterminators, and garbage
collectors are professionals. It is not surprising to find all such activities characterized as professions, inasmuch
as the word profession has come, in common use, to mean almost any occupation by which a person earns a
living. The once honorific sense of profession is now better reflected in the term learned profession, which
assumes an extensive education in the arts, humanities, law, sciences, or technologies.

Professionals are usually distinguished by their specialized knowledge and training as well as by their
commitment to provide important services or information to patients, clients, students, or consumers.
Professions maintain self-regulating organizations that control entry into occupational roles by formally
certifying that candidates have acquired the necessary knowledge and skills. In learned professions such as
medicine, nursing, and public health, a professional’s background knowledge is partly acquired through closely
supervised training, and the professional is committed to providing a service to others.

Health care professions specify and enforce obligations for their members, thereby seeking to ensure that
persons who enter into relationships with these professionals will find them competent and trustworthy.13 The
obligations that professions attempt to enforce are determined by an accepted role. These obligations comprise
the “ethics” of the profession, although there may also be role-specific customs such as self-effacement that are
not obligatory. Problems of professional ethics commonly arise either from conflicts over appropriate
professional standards or conflicts between professional commitments and the commitments professionals have
outside the profession.

Because traditional standards of professional morality are often vague, some professions codify their standards
in detailed statements aimed at reducing vagueness and improving adherence. Their codes sometimes specify
rules of etiquette in addition to rules of ethics. For example, a historically significant version of the code of the
American Medical Association (AMA) dating from 1847 instructed physicians not to criticize fellow physicians
who had previously been in charge of a case.14 Such professional codes tend to foster and reinforce member
identification with the prevailing values of the profession. These codes are beneficial when they effectively
incorporate defensible moral norms, but some codes oversimplify moral requirements, make them indefensibly
rigid, or make excessive and unwarranted claims about their completeness and authoritativeness. As a
consequence, professionals may mistakenly suppose that they are satisfying all relevant moral requirements by
scrupulously following the rules of the code, just as some people believe that they fully discharge their moral
obligations when they meet all relevant legal requirements.

We can and should ask whether the codes specific to areas of science, medicine, nursing, health care, and public
health are coherent, defensible, and comprehensive within their domain. Historically, few codes had much to say
about the implications of several pivotal moral principles and rules such as veracity, respect for autonomy, and
social justice that have been the subjects of intense discussion in recent biomedical ethics. From ancient
medicine to the present, physicians have generated codes without determining their acceptability to patients and
the public. These codes have rarely appealed to general ethical standards or to a source of moral authority
beyond the traditions and judgments of physicians themselves.15 The articulation of such professional norms has
often served more to protect the profession’s interests than to offer a broad and impartial moral viewpoint or to
address issues of importance to patients and society.16

Psychiatrist Jay Katz poignantly expressed reservations about traditional principles and codes of medical ethics.
Initially inspired by his outrage over the fate of Holocaust victims at the hands of German physicians, Katz

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became convinced that a professional ethics that reaches beyond traditional codes is indispensable:

As I became increasingly involved in the world of law, I learned much that was new to me from my
colleagues and students about such complex issues as the right to self-determination and privacy
and the extent of the authority of governmental, professional, and other institutions to intrude into
private life. … These issues … had rarely been discussed in my medical education. Instead it had
been all too uncritically assumed that they could be resolved by fidelity to such undefined principles
as primum non nocere [“First, do no harm”] or to visionary codes of ethics.17

The Regulation and Oversight of Professional Conduct

Additional moral direction for health professionals and scientists comes through the public policy process, which
includes regulations and guidelines promulgated by governmental bodies. The term public policy refers to a set
of normative, enforceable guidelines adopted by an official public body, such as an agency of government or a
legislature, to govern a particular area of conduct. The policies of corporations, hospitals, trade groups, and
professional societies are private, not public, even if these bodies are regulated to some degree by public policies
and sometimes have an impact on public policy.

A close connection exists between law and public policy: All laws constitute public policies, but not all public
policies are, in the conventional sense, laws. In contrast to laws, public policies need not be explicitly formulated
or codified. For example, an official who decides not to fund a newly recommended government program with
no prior history of funding is formulating a public policy. Decisions not to act, as well as decisions to act, can
constitute policies.

Policies such as those that fund health care for the indigent or that protect subjects of biomedical research
regularly incorporate moral considerations. Moral analysis is part of good policy formation, not merely a method
for evaluating existing policy. Efforts to protect the rights of patients and research subjects are instructive
examples. Over the past few decades many governments have created national commissions, national review
committees, advisory committees, and councils to formulate guidelines for research involving human subjects,
for the distribution of health care, and for addressing moral mistakes made in the health professions. Morally
informed policies have guided decision making about other areas of practice as well. The relevance of bioethics
to public policy is now recognized in most countries, some of which have influential standing bioethics
committees.18

Many courts have developed case law that sets standards for science, medicine, and health care. Legal decisions
often express communal moral norms and stimulate ethical reflection that over time alters those norms. For
example, the lines of court decisions in many countries about how dying patients may be or must be treated have
constituted nascent traditions of moral reflection that have been influenced by, and in turn have influenced,
literature in biomedical ethics on topics such as when artificial devices that sustain life may be withdrawn,
whether medically administered nutrition and hydration is a medical treatment that may be discontinued, and
whether physicians may be actively involved in hastening a patient’s death at the patient’s request.

Policy formation and criticism generally involve more specific moral judgments than the judgments found in
general ethical theories, principles, and rules.19 Public policy is often formulated in contexts that are marked by
profound social disagreements, uncertainties, and differing interpretations of history. No body of abstract moral
principles and rules can fix policy in such circumstances, because abstract norms do not contain enough specific
information to provide direct and discerning guidance. The implementation of moral principles and rules,
through specification and balancing, must take into account factors such as feasibility, efficiency, cultural
pluralism, political procedures, pertinent legal requirements, uncertainty about risk, and noncompliance by
patients. Moral principles and rules provide a normative structure for policy formation and evaluation, but
policies are also shaped by empirical data and information generated in fields such as medicine, nursing, public
health, veterinary science, economics, law, biotechnology, and psychology.

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When using moral norms to formulate or criticize public policies, one cannot move with assurance from a
judgment that an act is morally right (or wrong) to a judgment that a corresponding law or policy is morally right
(or wrong). Considerations such as the symbolic value of law and the costs of a publicly funded program and its
enforcement often may have substantial importance for law and policy. The judgment that an act is morally
wrong does not entail the judgment that the government should prohibit it or refuse to allocate funds to support
it. For example, one can argue without any inconsistency that sterilization and abortion are morally wrong but
that the law should not prohibit them, because they are fundamentally matters of personal choice beyond the
legitimate reach of government—or, alternatively, because many persons would seek dangerous and unsanitary
procedures from unlicensed practitioners. Similarly, the judgment that an act is morally acceptable does not
imply that the law should permit it. For example, the belief that euthanasia is morally justified for some
terminally ill infants who face uncontrollable pain and suffering is consistent with the belief that the government
should legally prohibit such euthanasia on grounds that it would not be possible to control abuses if it were
legalized.

We are not defending any of these moral judgments. We are maintaining only that the connections between
moral norms and judgments about policy or law are complicated and that a judgment about the morality of
particular actions does not entail a comparable judgment about law or policy.

MORAL DILEMMAS

Common to all forms of practical ethics is reasoning through difficult cases, some of which constitute dilemmas.
This is a familiar feature of decision making in morality, law, and public policy. Consider a classic case20 in
which judges on the California Supreme Court had to reach a decision about the legal force and limits of medical
confidentiality. A man had killed a woman after confiding to a therapist his intention to do so. The therapist had
attempted unsuccessfully to have the man committed but, in accordance with his duty of medical confidentiality
to the patient, did not communicate the threat to the woman when the commitment attempt failed.

The majority opinion of the court held that “When a therapist determines, or pursuant to the standards of his
profession should determine, that his patient presents a serious danger of violence to another, he incurs an
obligation to use reasonable care to protect the intended victim against such danger.” This obligation extends to
notifying the police and also to warning the intended victim. The justices in the majority opinion argued that
therapists generally ought to observe the rule of medical confidentiality, but that the rule must yield in this case
to the “public interest in safety from violent assault.” These justices recognized that rules of professional ethics
have substantial public value, but they held that matters of greater importance, such as protecting persons against
violent assault, can override these rules.

In a minority opinion, a judge disagreed and argued that doctors violate patients’ rights if they fail to observe
standard rules of confidentiality. If it were to become common practice to break these rules, he reasoned, the
fiduciary nature of the relationship between physicians and patients would erode. Persons who are mentally ill
would refrain from seeking aid or divulging critical information because of the loss of trust that is essential for
effective treatment.

This case presents moral and legal dilemmas in which the judges cite relevant reasons to support their
conflicting judgments.21 Moral dilemmas are circumstances in which moral obligations demand or appear to
demand that a person adopt each of two (or more) alternative but incompatible actions, such that the person
cannot perform all the required actions. These dilemmas occur in at least two forms.22 (1) Some evidence or
argument indicates that an act is morally permissible and some evidence or argument indicates that it is morally
wrong, but the evidence or strength of argument on both sides is inconclusive. Abortion, for example, may
present a terrible dilemma for women who see the evidence in this way. (2) An agent believes that, on moral
grounds, he or she is obligated to perform two or more mutually exclusive actions. In a moral dilemma of this
form, one or more moral norms obligate an agent to do x and one or more moral norms obligate the agent to do
y, but the agent cannot do both in the circumstance. The reasons behind alternatives x and y are weighty and
neither set of reasons is overriding. If one acts on either set of reasons, one’s actions will be morally acceptable

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in some respects and morally unacceptable in others. The withdrawal of life-prolonging therapies from patients
suffering from a wakeful unconscious state (formerly called a persistent, continuing, or continuous vegetative
state) is sometimes regarded as an instance of this second form of dilemma.

Popular literature, novels, and films often illustrate how conflicting moral principles and rules create difficult
dilemmas. For example, an impoverished person who steals from a grocery store to save a family from
starvation confronts such a dilemma. The only way to comply with one obligation is to contravene another
obligation. Some obligation must be overridden or compromised no matter which course is chosen. From the
perspective we defend, it is confusing to say that we are obligated to perform both actions in these dilemmatic
circumstances. Instead, we should discharge the obligation that we judge to override what we would have been
firmly obligated to perform were it not for the conflict.

Conflicts between moral requirements and self-interest sometimes create a practical dilemma, but not, strictly
speaking, a moral dilemma. If moral reasons compete with nonmoral reasons, such as self-interest, questions
about priority can still arise even though no moral dilemma is present. When a moral reason conflicts with a
personal reason, the moral reason is not always overriding. If, for example, a physician must choose between
saving his or her own life or that of a patient, in a situation of extreme scarcity of available drugs, the moral
obligation to take care of the patient may not be overriding.

Some moral philosophers and theologians have argued that although many practical dilemmas involving moral
reasons exist, no irresolvable moral dilemmas exist. They do not deny that agents experience moral perplexity or
conflict in difficult cases. However, they claim that the purpose of a moral theory is to provide a principled
procedure for resolving deep conflicts. Some philosophers have defended this conclusion because they accept
one supreme moral value as overriding all other conflicting values (moral and nonmoral) and because they
regard it as incoherent to allow contradictory obligations in a properly structured moral theory. The only ought,
they maintain, is the one generated by the supreme value.23 (We examine such theories, including both
utilitarian and Kantian theories, in Chapter 9.)

In contrast to the account of moral obligation offered by these theories, we maintain throughout this book that
various moral principles, rules, and rights can and do conflict in the moral life. These conflicts sometimes
produce irresolvable moral dilemmas. When forced to a choice, we may “resolve” the situation by choosing one
option over another, but we also may believe that neither option is morally preferable. A physician with a limited
supply of medicine may have to choose to save the life of one patient rather than another and still find his or her
moral dilemma irresolvable. Explicit acknowledgment of such dilemmas helps deflate unwarranted expectations
about what moral principles and theories can do. Although we find ways of reasoning about what we should do,
we may not be able to reach a reasoned resolution in many instances. In some cases the dilemma becomes more
difficult and remains unresolved even after the most careful reflection.

A FRAMEWORK OF MORAL PRINCIPLES

Moral norms central to biomedical ethics rely on the common morality, but they do not exhaust the common
morality. Some types of basic moral norms are treated in this section, especially principles, rules, and rights. The
virtues are the subject of Chapter 2, and the principles of primary importance for biomedical ethics are treated
individually in Part II of this book. Most classical ethical theories accept these norms in some form, and
traditional medical codes incorporate or presuppose at least some of them.

Principles

The set of pivotal moral principles defended in this book functions as an analytical framework of general norms
derived from the common morality that form a suitable starting point for reflection on moral problems in
biomedical ethics.24 These principles are general guidelines for the formulation of more specific rules. In
Chapters 4 through 7 we defend four clusters of moral principles: (1) respect for autonomy (a norm of respecting
and supporting autonomous decisions), (2) nonmaleficence (a norm of avoiding the causation of harm), (3)

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beneficence (a group of norms pertaining to relieving, lessening, or preventing harm and providing benefits and
balancing benefits against risks and costs), and (4) justice (a cluster of norms for fairly distributing benefits,
risks, and costs).

Nonmaleficence and beneficence have played central roles in the history of medical ethics. By contrast, respect
for autonomy and justice were neglected in traditional medical ethics and have risen to prominence in this field
only recently. In 1803, British physician Thomas Percival published Medical Ethics, the first comprehensive
account of medical ethics in the long history of the subject. This book served as the backbone of British medical
ethics and as the prototype for the American Medical Association’s first code of ethics in 1847. Percival argued,
using somewhat different language, that nonmaleficence and beneficence fix the physician’s primary obligations
and triumph over the patient’s preferences and decision-making rights in circumstances of conflict.25 Percival
understated the critically important place of principles of respect for autonomy and distributive justice for
physician conduct, but, in fairness to him, these considerations are now prominent in discussions of ethics in
medicine in a way they were not when he wrote Medical Ethics.

That these four clusters of moral principles are central to biomedical ethics is a conclusion the authors of this
work have reached by examining considered moral judgments and the coherence of moral beliefs, two notions
analyzed in Chapter 10. The selection of these four principles, rather than some other clusters of principles, does
not receive an argued defense in Chapters 1 through 3. However, in Chapters 4 through 7, we defend the vital
role of each principle in biomedical ethics.

Rules

The framework of moral norms in this book encompasses several types of normative guidance, most notably
principles, rules, rights, and virtues. Principles are more comprehensive and less specific than rules, but we draw
only a loose distinction between them. Both are norms of obligation, but rules are more specific in content and
more restricted in scope. Principles do not function as precise guides in each circumstance in the way that more
detailed rules and judgments do. Principles and rules of obligation have correlative rights and often
corresponding virtues. (See the discussion of rights in Chapter 9 and of virtues in Chapter 2.)

We defend several types of rules, the most important being substantive rules, authority rules, and procedural
rules.

Substantive rules. Rules of truth telling, confidentiality, privacy, forgoing treatment, informed consent, and
rationing health care provide more specific guides to action than do abstract principles. An example of a rule that
sharpens the requirements of the principle of respect for autonomy in certain contexts is “Follow an incompetent
patient’s advance directive whenever it is clear and relevant.” To indicate how this rule specifies the principle of
respect for autonomy, it needs to be stated in full as “Respect the autonomy of incompetent patients by following
all clear and relevant formulations in their advance directives.” This specification shows how the initial norm of
respect for autonomy endures even while becoming specified. (See the subsection “Specifying Principles and
Rules” in the next section of this chapter.)

Authority rules. We also defend rules of decisional authority—that is, rules regarding who may and should
make decisions and perform actions. For example, rules of surrogate authority determine who should serve as
surrogate agents when making decisions for incompetent persons; rules of professional authority determine who
in professional ranks should make decisions to accept or to override a patient’s decisions; and rules of
distributional authority determine who should make decisions about allocating scarce medical resources such as
new and expensive medical technologies.

Authority rules do not delineate substantive standards or criteria for making decisions. However, authority rules
and substantive rules interact in some situations. For instance, authority rules are justified, in part, by how well
particular authorities can be expected to respect and comply with substantive rules and principles.

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Procedural rules. We also defend rules that establish procedures to be followed. Procedures for determining
eligibility for organ transplantation and procedures for reporting grievances to higher authorities are typical
examples. We often resort to procedural rules when we run out of substantive rules and when authority rules are
incomplete or inconclusive. For example, if substantive or authority rules are inadequate to determine which
patients should receive scarce medical resources, a resort to procedural rules such as queuing and lottery may be
justifiable.26

CONFLICTING MORAL NORMS

Prima Facie Obligations and Rights

Principles, rules, obligations, and rights are not rigid or absolute standards that allow no compromise. Although
“a person of principle” is sometimes depicted as strict and unyielding, principles must be balanced and specified
so they can function practically. It is no objection to moral norms that, in some circumstances, they can be
justifiably overridden by other norms with which they conflict. All general moral norms are justifiably
overridden in some circumstances. For example, we might justifiably not tell the truth to prevent someone from
killing another person; and we might justifiably disclose confidential information about a person to protect the
rights of another person.

Actions that harm individuals, cause basic needs to go unmet, or limit liberties are often said to be either wrong
prima facie (i.e., wrongness is upheld unless the act is justifiable because of norms that are more stringent in the
circumstances) or wrong pro tanto (i.e., wrong to a certain extent or wrong unless there is a compelling
justification)—which is to say that the action is wrong in the absence of other moral considerations that supply a
compelling justification.27 Compelling justifications are sometimes available. For example, in circumstances of
a severe swine flu pandemic, the forced confinement of persons through isolation and quarantine orders might be
justified. Here a justifiable infringement of liberty rights occurs.

W. D. Ross’s distinction between prima facie and actual obligations clarifies this idea. A prima facie obligation
must be fulfilled unless it conflicts with an equal or stronger obligation. Likewise, a prima facie right (here we
extend Ross’s theory) must prevail unless it conflicts with an equal or stronger right (or conflicts with some
other morally compelling alternative). Obligations and rights always constrain us unless a competing moral
obligation or right can be shown to be overriding in a particular circumstance. As Ross put it, agents can
determine their actual obligations in situations of conflict by examining the respective weights of the competing
prima facie obligations. What agents ought to do is determined by what they ought to do all things considered.28

Imagine that a psychiatrist has confidential medical information about a patient who also happens to be an
employee in the hospital where the psychiatrist practices. The employee seeks advancement in a stress-filled
position, but the psychiatrist has good reason to believe that this advancement would be devastating for both the
employee and the hospital. The psychiatrist has several prima facie duties in these circumstances, including
those of confidentiality, nonmaleficence, beneficence, and respect for autonomy. Should the psychiatrist break
confidence in this circumstance to meet these other duties? Could the psychiatrist make “confidential”
disclosures to a hospital administrator and not to the personnel office? Addressing such questions through moral
deliberation and justification is required to establish an agent’s actual duty in the face of the conflicting prima
facie duties.

These matters are more complicated than Ross suggests, particularly when rights come into conflict. We may
need to develop a structured moral system or set of guidelines in which (1) some rights in a certain class of
rights (for example, rights of individuals while alive to decide whether to donate their tissues and organs after
death) have a fixed priority over others in another class of rights (for example, rights of family members to make
decisions about the donation of their deceased relatives’ tissues and organs) and (2) morally compelling social
objectives such as gathering information in biomedical research can generally be overridden by basic human
rights such as the right to give an informed consent or refusal.

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No moral theory or professional code of ethics has successfully presented a system of moral rules free of
conflicts and exceptions, but this observation should not generate either skepticism or alarm about ethical
reflection, argument, and theory. The distinction between prima facie and actual obligations conforms closely to
our experience as moral agents and provides indispensable categories for biomedical ethics. Almost daily we
confront situations that force us to choose among conflicting values in our personal lives. For example, a
person’s financial situation might require that he or she choose between buying books for school and buying a
train ticket to see friends. Not having the books will be an inconvenience and a loss, whereas not visiting with
friends will disappoint the friends. Such choices do not come effortlessly, but we are usually able to think
through the alternatives, deliberate, and reach a conclusion.

Moral Regret and Residual Obligation

An agent who determines that a particular act is the best one to perform in a situation of conflicting obligations
may still not be able to discharge all aspects of moral obligation by performing that act. Even the morally best
action in the circumstances may still be regrettable and may leave a moral residue, also called a moral trace.29

Regret and residue over what is not done can arise even if the right action is clear and uncontested.

This point is about continuing obligation, not merely about feelings of regret and residue. Moral residue occurs
because a prima facie obligation does not simply disappear when overridden. Often we have residual obligations
because the obligations we were unable to discharge create new obligations. We may feel deep regret and a sting
of conscience, but we also realize that we have a duty to bring closure to the situation.30 We can sometimes
make up for not fulfilling an obligation in one or more of several ways. For example, we may be able to notify
persons in advance that we will not be able to keep a promise; we may be able to apologize in a way that heals a
relationship; we may be able to change circumstances so that the conflict does not occur again; and we may be
able to provide adequate compensation.

Specifying Principles and Rules

The four clusters of principles we present in this book do not by themselves constitute a general ethical theory.
They provide only a framework of norms with which to get started in biomedical ethics. These principles must
be specified in order to achieve more concrete guidance. Specification is a process of reducing the indeterminacy
of abstract norms and generating rules with action-guiding content.31 For example, without further specification,
“do no harm” is too bare for thinking through problems such as whether it is permissible to hasten the death of a
terminally ill patient.

Specification is not a process of producing or defending general norms such as those in the common morality; it
assumes that the relevant general norms are available. Specifying the norms with which one starts—whether
those in the common morality or norms previously specified—is accomplished by narrowing the scope of the
norms, not by explaining what the general norms mean. We narrow the scope, as Henry Richardson puts it, by
“spelling out where, when, why, how, by what means, to whom, or by whom the action is to be done or
avoided.”32 For example, the norm that we are obligated to “respect the autonomy of persons” cannot, unless
specified, handle complicated problems in clinical medicine and research involving human subjects. A definition
of “respect for autonomy” (e.g., as “allowing competent persons to exercise their liberty rights”) clarifies one’s
meaning in using the norm, but it does not narrow the scope of the general norm or render it more specific in
guiding actions.

Specification adds content. For example, as noted previously, one possible specification of “Respect the
autonomy of patients” is “Respect the autonomy of competent patients by following their advance directives
when they become incompetent.” This specification will work well in some medical contexts, but it will
confront limits in others, where additional specification will be needed. Progressive specification can continue
indefinitely, but to qualify all along the way as a specification some transparent connection must be maintained
to the initial general norm that gives moral authority to the resulting string of specifications. This process is a

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prime way in which general principles become practical instruments for moral reasoning; and it also helps
explain why the four-principles approach is not merely an abstract theory limited to four general principles.33

An example of specification arises when psychiatrists conduct forensic evaluations of patients in a legal context.
Psychiatrists cannot always obtain an informed consent, but they then risk violating their obligations to respect
autonomy, a central imperative of medical ethics. A specification aimed at handling this problem is “Respect the
autonomy of persons who are the subjects of forensic evaluations, where consent is not legally required, by
disclosing to the evaluee the nature and purpose of the evaluation.” We do not claim that this formulation is the
best specification, but it approximates the provision recommended in the “Ethical Guidelines for the Practice of
Forensic Psychiatry” of the American Academy of Psychiatry and the Law.34 This specification attempts to
guide forensic psychiatrists in discharging their diverse moral obligations.

Another example of specification derives from the oft-cited rule “Doctors should put their patients’ interests
first.” In some countries patients are able to receive the best treatment available only if their physicians falsify
information on insurance forms. The rule of patient priority does not imply that a physician should act illegally
by lying or distorting the description of a patient’s problem on an insurance form. Rules against deception, on
the one hand, and for patient priority, on the other, are not categorical imperatives. When they conflict, we need
some form of specification to know what we can and cannot do.

A survey of practicing physicians’ attitudes toward deception illustrates how some physicians reconcile their
dual commitment to patients and to nondeception. Dennis H. Novack and several colleagues used a
questionnaire to obtain physicians’ responses to difficult ethical problems that potentially could be resolved by
use of deception. In one scenario, a physician recommends an annual screening mammography for a fifty-two-
year-old woman who protests that her insurance company will not cover the test. The insurance company will
cover the costs if the physician states (deceptively in this scenario) that the reason is “rule out cancer” rather
than “screening mammography.” The insurance company understands “rule out cancer” to apply only if there is
a breast mass or other objective clinical evidence of the possibility of cancer, neither of which is present in this
case. Almost 70% of the physicians responding to this survey indicated that they would state that they were
seeking to “rule out cancer,” and 85% of this group (85% of the 70%) insisted that their act would not involve
“deception.”35

These physicians’ decisions are rudimentary attempts to specify the rule that “Doctors should put their patients’
interests first.” Some doctors seem to think that it is properly specified as follows: “Doctors should put their
patients’ interests first by withholding information from or misleading someone who has no right to that
information, including an insurance company that, through unjust policies of coverage, forfeits its right to
accurate information.” In addition, most physicians in the study apparently did not operate with the definition of
“deception” favored by the researchers, which is “to deceive is to make another believe what is not true, to
mislead.” Some physicians apparently believed that “deception” occurs when one person unjustifiably misleads
another, and that it was justifiable to mislead the insurance company in these circumstances. It appears that these
physicians would not agree on how to specify rules against deception or rules assigning priority to patients’
interests.

All moral rules are, in principle, subject to specification. All will need additional content, because, as
Richardson puts it, “the complexity of the moral phenomena always outruns our ability to capture them in
general norms.”36 Many already specified rules will need further specification to handle new circumstances of
conflict. These conclusions are connected to our earlier discussion of particular moralities. Different persons and
groups will offer conflicting specifications, potentially creating multiple particular moralities. In any problematic
case, competing specifications are likely to be offered by reasonable and fair-minded parties, all of whom are
committed to the common morality.

To say that a problem or conflict is resolved or dissolved by specification is to say that norms have been made
sufficiently determinate in content that, when cases fall under them, we know what must be done. Obviously
some proposed specifications will fail to provide the most adequate or justified resolution. When competing
specifications emerge, the proposed specifications should be based on deliberative processes of reasoning.

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Specification as a method can be connected to a model of justification that will support some specifications and
not others, as we argue in Chapter 10 (pp. 456–57).

Some specified norms are virtually absolute and need no further specification, though they are rare. Examples
include prohibitions of cruelty that involve unnecessary infliction of pain and suffering.37 “Do not rape” is a
comparable example. More interesting are norms that are intentionally formulated with the goal of including all
legitimate exceptions. An example is “Always obtain oral or written informed consent for medical interventions
with competent patients, except in emergencies, in forensic examinations, in low-risk situations, or when patients
have waived their right to adequate information.” This norm needs further interpretation, including an analysis
of what constitutes an informed consent, an emergency, a waiver, a forensic examination, and a low risk. This
rule would be absolute if all legitimate exceptions had been successfully incorporated into its formulation, but
such rules are rare. In light of the range of possibilities for contingent conflicts among rules, even the firmest and
most detailed rules are likely to encounter exceptive cases.

Weighing and Balancing

Principles, rules, obligations, and rights often must be balanced in circumstances of contingent conflict. Does
balancing differ from specification, or are they identical?

The process of weighing and balancing. Balancing occurs in the process of reasoning about which moral norms
should prevail when two or more of them come into conflict. Balancing is concerned with the relative weights
and strengths of different moral norms, whereas specification is concerned primarily with their range and scope,
that is, their reach when narrowing the scope of pre-existing general norms (while adding content). Balancing
consists of deliberation and judgment about these weights and strengths. It is well suited for reaching judgments
in particular cases, whereas specification is especially useful for developing more specific policies from already
accepted general norms.

The metaphor of larger and smaller weights moving a scale up and down has often been invoked to depict the
balancing process, but this metaphor can obscure what happens in balancing. Justified acts of balancing are
supported by good reasons. They need not rest merely on intuition or feeling, although intuitive balancing is one
form of balancing. Suppose a physician encounters an emergency case that would require her to extend an
already long day, making her unable to keep a promise to take her son to the local library. She engages in a
process of deliberation that leads her to consider how urgently her son needs to get to the library, whether they
could go to the library later, whether another physician could handle the emergency case, and the like. If she
determines to stay deep into the night with the patient, she has judged this obligation to be overriding because
she has found a good and sufficient reason for her action. The reason might be that a life hangs in the balance
and she alone may have the knowledge to deal adequately with the circumstances. Canceling her evening with
her son, distressing as it will be, could be justified by the significance of her reasons for doing what she does.

One way of approaching balancing merges it with specification. In our example, the physician’s reasons can be
generalized to similar cases: “If a patient’s life hangs in the balance and the attending physician alone has the
knowledge to deal adequately with the full array of the circumstances, then the physician’s conflicting domestic
obligations must yield.” Even if we do not always state the way we balance considerations in the form of a
specification, might not all deliberative judgments be made to conform to this model? If so, then deliberative
balancing would be nothing but deliberative specification.

The goal of merging specification and balancing is appealing, but it is not well-suited to handle all situations in
which balancing occurs. Specification requires that a moral agent extend norms by both narrowing their scope
and generalizing to relevantly similar circumstances. Accordingly, “Respect the autonomy of competent patients
when they become incompetent by following their advance directives” is a rule suited for all incompetent
patients with advance directives. However, the responses of caring moral agents, such as physicians and nurses,
are often highly specific to the needs of this patient or this family in this particular circumstance. Numerous
considerations must be weighed and balanced, and any generalizations that could be formed might not hold even
in remarkably similar cases.

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Generalizations conceived as policies might even be dangerous. For example, cases in which risk of harm and
burden are involved for a patient are often circumstances unlikely to be decided by expressing, by a rule, how
much risk is allowable or how heavy the burden can be to secure a certain stated benefit. After levels of risk and
burden are determined, these considerations must be balanced with the likelihood of the success of a procedure,
the uncertainties involved, whether an adequately informed consent can be obtained, whether the family has a
role to play, and the like. In this way, balancing allows for a due consideration of all the factors bearing on a
complex particular circumstance, including all relevant moral norms.

Consider the following discussion with a young woman who has just been told that she is HIV-infected, as
recorded by physician Timothy Quill and nurse Penelope Townsend:38

PATIENT: Please don’t tell me that. Oh my God. Oh my children. Oh Lord have mercy. Oh God,
why did He do this to me? …

DR. QUILL: First thing we have to do is learn as much as we can about it, because right now you
are okay.

PATIENT: I don’t even have a future. Everything I know is that you gonna die anytime. What is
there to do? What if I’m a walking time bomb? People will be scared to even touch me or say
anything to me.

DR. QUILL: No, that’s not so.

PATIENT: Yes they will, ’cause I feel that way …

DR. QUILL: There is a future for you …

PATIENT: Okay, all right. I’m so scared. I don’t want to die. I don’t want to die, Dr. Quill, not yet. I
know I got to die, but I don’t want to die.

DR. QUILL: We’ve got to think about a couple of things.

Quill and Townsend work to calm down and reassure this patient, while engaging sympathetically with her
feelings and conveying the presence of knowledgeable medical authorities. Their emotional investment in the
patient’s feelings is joined with a detached evaluation of the patient. Too much compassion and emotional
investment may doom the task at hand; too much detachment will be cold and may destroy the patient’s trust and
hope. A balance in the sense of a right mixture between engagement and detachment must be found.

Quill and Townsend could try to specify norms of respect and beneficence to indicate how caring physicians and
nurses should respond to patients who are desperately upset. However, specification will ring hollow and will
not be sufficiently nuanced to provide practical guidance for this patient and certainly not for all desperately
upset patients. Each encounter calls for a response inadequately captured by general principles and rules and
their specifications. Behavior that is a caring response for one desperate patient may intrude on privacy or
irritate another desperate patient. A physician may, for example, find it appropriate to touch or caress a patient,
while appreciating that such behavior would be entirely inappropriate for another patient in a similar
circumstance.

How physicians and nurses balance different moral considerations often involves sympathetic insight, humane
responsiveness, and the practical wisdom of discerning a particular patient’s circumstance and needs.39

Balancing is often a more complex set of activities than those involved in a straightforward case of balancing
two conflicting principles or rules. Considerations of trust, compassion, objective assessment, caring
responsiveness, reassurance, and the like may all be involved in the process of balancing.

In many clinical contexts it may be hopelessly complicated and unproductive to engage in specification. For
example, in cases of balancing harms of treatment against the benefits of treatment for incompetent patients, the

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cases are often so exceptional that it is perilous to generalize a conclusion that would reach out to other cases.
These problems are sometimes further complicated by disagreements among family members about what
constitutes a benefit, poor decisions and indecision by a marginally competent patient, limitations of time and
resources, and the like.40

We do not suggest that balancing is inescapably intuitive and unreflective. Instead, we propose a model of moral
judgment that focuses on how balancing and judgment occur through practical astuteness, discriminating
intelligence, and sympathetic responsiveness that are not reducible to the specification of norms. The capacity to
balance many moral considerations is connected to what we discuss in Chapter 2 as capacities of moral
character. Capacities in the form of virtues of compassion, attentiveness, discernment, caring, and kindness are
integral to the way wise moral agents balance diverse, sometimes competing, moral considerations.

Practicability supplies another reason to support the conclusion that the model of specification needs
supplementation by the model of balancing. Progressive specification covering all areas of the moral life would
eventually mushroom into a body of norms so bulky that the normative system would become unwieldy. A
scheme of comprehensive specification would constitute a package of potentially hundreds, thousands, or
millions of rules, each suited to a narrow range of conduct. In the model of specification, every type of action in
a circumstance of the contingent conflict of norms would be covered by a rule, but the formulation of rules for
every circumstance of contingent conflict would be a body of rules too cumbersome to be helpful.

Conditions that constrain balancing. To allay concerns that the model of balancing is too intuitive or too open-
ended and lacks a commitment to firm principles and rigorous reasoning, we propose six conditions that should
help reduce intuition, partiality, and arbitrariness. These conditions must be met to justify infringing one prima
facie norm in order to adhere to another.

1. 1. Good reasons are offered to act on the overriding norm rather than the infringed norm.
2. 2. The moral objective justifying the infringement has a realistic prospect of achievement.
3. 3. No morally preferable alternative actions are available.41

4. 4. The lowest level of infringement, commensurate with achieving the primary goal of the action, has been
selected.

5. 5. All negative effects of the infringement have been minimized.
6. 6. All affected parties have been treated impartially.

Although some of these conditions are obvious and noncontroversial, some are often overlooked in moral
deliberation and would lead to different conclusions were they observed. For example, some decisions to use
futile life-extending technologies over the objections of patients or their surrogates violate condition 2 by
endorsing actions in which no realistic prospect exists of achieving the goals of a proposed intervention.
Typically, these decisions are made when health professionals regard the intervention as legally required, but in
some cases the standard invoked is merely traditional or deeply entrenched.

Condition 3 is more commonly violated. Actions are regularly performed in some settings without serious
consideration of alternative actions that might be performed. As a result, agents fail to identify a morally
preferable alternative. For example, in animal care and use committees a common conflict involves the
obligation to approve a good scientific protocol and the obligation to protect animals against unnecessary
suffering. A protocol may be approved if it proposes a standard form of anesthesia. However, standard forms of
anesthesia are not always the best way to protect the animal, and further inquiry is needed to determine the best
anesthetic for the particular interventions proposed. In our schema of conditions, it is unjustifiable to approve the
protocol or to conduct the experiment without this additional inquiry, which affects conditions 4 and 5 as well as
3.

Finally, consider this example: The principle of respect for autonomy and the principle of beneficence (which
requires acts intended to prevent harm to others) sometimes come into contingent conflict when addressing
situations that arise in governmental and professional responses to serious infectious-disease outbreaks, such as
severe acquired respiratory syndrome (SARS). Persons exposed to SARS may put other persons at risk. The

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government, under its public health responsibilities, and various health professionals have an obligation based
on beneficence and justice to protect unexposed persons whenever possible. However, respect for autonomy
often sets a prima facie barrier to infringements of liberty and privacy even in the context of public health
concerns. To justify overriding respect for autonomy, one must show that mandatory quarantine of exposed
individuals is necessary to prevent harm to others and has a reasonable prospect of preventing such harm. If it
meets these conditions, mandatory quarantine still must pass the least-infringement test (condition 4), and public
health officials should seek to minimize the negative effects of the quarantine, including the loss of income and
the inability to care for dependent family members (condition 5). Finally, impartial application of the quarantine
rules is essential for both fairness and public trust (condition 6).42

In our judgment, these six constraining conditions are morally demanding, at least in some circumstances. When
conjoined with requirements of coherence presented in Chapter 10 (pp. 439–44), these conditions provide
protections against purely intuitive, subjective, or biased balancing judgments. We could introduce further
criteria or safeguards, such as “rights override nonrights” and “liberty principles override nonliberty principles,”
but these provisions are certain to fail in circumstances in which rights claims and liberty interests are relatively
minor.

Moral Diversity and Moral Disagreement

Sometimes conscientious and reasonable moral agents understandably disagree over moral priorities in
circumstances of a contingent conflict of norms. Morally conscientious persons may disagree, for example,
about whether disclosure of a life-threatening condition to a fragile patient is appropriate, whether religious
values about brain death have a place in secular biomedical ethics, whether mature teenagers should be
permitted to refuse life-sustaining treatments, and other issues. Disagreement does not indicate moral ignorance
or moral defect. We simply lack a single, entirely reliable way to resolve many disagreements, despite methods
of specifying and balancing.

Moral disagreement can emerge because of (1) factual disagreements (e.g., about the level of suffering that an
intervention will cause), (2) disagreements resulting from insufficient information or evidence, (3)
disagreements about which norms are applicable or relevant in the circumstances, (4) disagreements about the
relative weights or rankings of the relevant norms, (5) disagreements about appropriate forms of specification or
balancing, (6) the presence of a genuine moral dilemma, (7) scope and moral status disagreements about who
should be protected by a moral norm (e.g., whether embryos, fetuses, and sentient animals are protected; see
Chapter 3), and (8) conceptual disagreements about a crucial moral concept such as whether removal of nutrition
and hydration from a dying patient at a family’s request constitutes killing.

Different parties may emphasize different principles or assign different weights to principles even when they
agree on which principles and concepts are relevant. Disagreement may persist among morally committed
persons who appropriately appreciate the basic demands that morality makes on them. If evidence is incomplete
and different items of evidence are available to different parties, one individual or group may be justified in
reaching a conclusion that another individual or group is justified in rejecting. Even if both parties have some
incorrect beliefs, each party may have good reasons for holding those beliefs. We cannot hold persons to a
higher practical standard than to make judgments conscientiously in light of the available norms and evidence.

When moral disagreements arise, a moral agent can—and usually should—defend his or her decision without
disparaging or reproaching others who reach different decisions. Recognition of legitimate diversity—by
contrast to moral violations that warrant criticism—is vital in the evaluation of the actions of others. One
person’s conscientious assessment of his or her obligations may differ from another’s when they confront the
same moral problem, and both evaluations may be appropriately grounded in the common morality. Similarly,
what one institution or government determines it should do may differ from what another institution or
government determines it should do. In such cases we can assess one position as morally preferable to another
only if we can show that the position rests on a more coherent set of specifications and interpretations of the
common morality.43

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CONCLUSION

In this chapter we have presented what is sometimes called the four-principles approach to biomedical ethics,
now commonly called principlism.44 The four clusters of principles in our moral framework descend from the
common morality, but when specifying and balancing these principles in later chapters we will also call on
historical experience in formulating professional obligations and virtues in health care, public health, biomedical
research, and health policy. Although various assumptions in traditional medical ethics, current medical and
research codes, and other parts of contemporary bioethics need further reform, we are deeply indebted to their
insights and commitments. Our goal in later chapters is to develop, specify, and balance the normative content of
the four clusters of principles, and we will often seek to render our views consistent with professional traditions,
practices, and codes.

Principlism is not merely a list of four abstract principles. It is a theory about how these principles are linked to
and guide practice. In the nine chapters hereafter we show how principles and other moral norms are connected
to an array of understandings, practices, and transactions in health care settings, research institutions, and public
health policies.

NOTES

1. 1. See Albert Jonsen, The Birth of Bioethics (New York: Oxford University Press, 1998), pp. 3ff; Jonsen,
A Short History of Medical Ethics (New York: Oxford University Press, 2000); John-Stewart Gordon,
“Bioethics,” in the Internet Encyclopedia of Philosophy, especially section 2, available at
https://www.iep.utm.edu/bioethics/ (accessed March 23, 2018); and Edmund D. Pellegrino and David C.
Thomasma, The Virtues in Medical Practice (New York: Oxford University Press, 1993), pp. 184–89.

2. 2. A comprehensive treatment of this history that ranges worldwide is Robert B. Baker and Laurence
McCullough, eds., The Cambridge World History of Medical Ethics (Cambridge: Cambridge University
Press, 2009).

3. 3. The language of “applied ethics” can be misleading insofar as it suggests one-way traffic from ethical
theory and principles and rules to particular judgments about cases. In fact, particular case judgments
interact dialectically with and may lead to modifications of theories, principles, and rules. See our
discussion in Chapter 10, pp. 404–10.

4. 4. These distinctions should be used with caution. Metaethics frequently takes a turn toward the
normative, and normative ethics often relies on metaethics. Just as no sharp distinction should be drawn
between practical ethics and general normative ethics, no bright line should be drawn to distinguish
normative ethics and metaethics.

5. 5. Although there is only one universal common morality, there is more than one theory of the common
morality. For a diverse group of theories, see Alan Donagan, The Theory of Morality (Chicago: University
of Chicago Press, 1977); Bernard Gert, Common Morality: Deciding What to Do (New York: Oxford
University Press, 2007); Bernard Gert, Charles M. Culver, and K. Danner Clouser, Bioethics: A Return to
Fundamentals, 2nd ed. (New York: Oxford University Press, 2006); W. D. Ross, The Foundations of
Ethics (Oxford: Oxford University Press, 1939); and the special issue of the Kennedy Institute of Ethics
Journal 13 (2003), especially the introductory article by Robert Veatch, pp. 189–92.

For challenges to these theories and their place in bioethics, see John D. Arras, “The Hedgehog and the
Borg: Common Morality in Bioethics,” Theoretical Medicine and Bioethics 30 (2009): 11–30; Arras, “A
Common Morality for Hedgehogs: Bernard Gert’s Method,” in Arras, Methods in Bioethics: The Way We
Reason Now, ed. James F. Childress and Matthew Adams (New York: Oxford University Press, 2017), pp.
27–44; B. Bautz, “What Is the Common Morality, Really?” Kennedy Institute of Ethics Journal 26 (2016):
29–45; Carson Strong, “Is There No Common Morality?” Medical Humanities Review 11 (1997): 39–45;
and Andrew Alexandra and Seumas Miller, “Ethical Theory, ‘Common Morality,’ and Professional
Obligations,” Theoretical Medicine and Bioethics 30 (2009): 69–80.

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6. 6. See Martha Nussbaum’s thesis that in Aristotle’s philosophy, certain “non-relative virtues” are objective
and universal. “Non-Relative Virtues: An Aristotelian Approach,” in Ethical Theory, Character, and
Virtue, ed. Peter French et al. (Notre Dame, IN: University of Notre Dame Press, 1988), pp. 32–53,
especially pp. 33–4, 46–50. In a classic work in philosophical ethics, David Hume presents a theory of the
virtues as objective and universal, though his theory is somewhat different from Aristotle’s. See Hume’s
An Enquiry concerning the Principles of Morals, ed. Tom L. Beauchamp, in the series “Oxford
Philosophical Texts Editions” (Oxford: Oxford University Press, 1998).

7. 7. For a broad and engaging account of common morality, see Rebecca Kukla, “Living with Pirates:
Common Morality and Embodied Practice,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 75–85.
See also Bernard Gert’s insistence on the role of the whole moral system (not merely rules of obligation)
and the perils of neglecting it, an often overlooked point with which we agree. See Gert’s Morality: Its
Nature and Justification (New York: Oxford University Press, 2005), pp. 3, 159–61, 246–47; and see also
his “The Definition of Morality,” in The Stanford Encyclopedia of Philosophy; revision of February 8,
2016, available at https://plato.stanford.edu/entries/morality-definition/ (accessed February 9, 2018).

8. 8. This mistaken interpretation of our theory is found in Leigh Turner, “Zones of Consensus and Zones of
Conflict: Questioning the ‘Common Morality’ Presumption in Bioethics,” Kennedy Institute of Ethics
Journal 13 (2003): 193–218; and Turner, “An Anthropological Exploration of Contemporary Bioethics:
The Varieties of Common Sense,” Journal of Medical Ethics 24 (1998): 127–33.

9. 9. See David DeGrazia, “Common Morality, Coherence, and the Principles of Biomedical Ethics,”
Kennedy Institute of Ethics Journal 13 (2003): 219–30; Turner, “Zones of Consensus and Zones of
Conflict”; Donald C. Ainslee, “Bioethics and the Problem of Pluralism,” Social Philosophy and Policy 19
(2002): 1–28; Oliver Rauprich, “Common Morality: Comment on Beauchamp and Childress,” Theoretical
Medicine and Bioethics 29 (2008): 43–71; and Letícia Erig Osório de Azambuja and Volnei Garrafa, “The
Common Morality Theory in the Work of Beauchamp and Childress,” Revista Bioética 23 (2015),
available at http://www.scielo.br/scielo.php?pid=S1983-80422015000300634&script=sci_arttext&tlng=en
(accessed March 22, 2018). For a related, but distinguishable, criticism, see Anna E. Westra, Dick L.
Willems, and Bert J. Smit, “Communicating with Muslim Parents: ‘The Four Principles’ Are not as
Culturally Neutral as Suggested,” European Journal of Pediatrics 168 (2009): 1383–87; this article is
published together with a beautifully correct interpretation of our position by Voo Teck Chuan, “Editorial
Comment: The Four Principles and Cultural Specification,” European Journal of Pediatrics 168 (2009):
1389.

10. 10. Kukla reaches this conclusion in “Living with Pirates.” See, in response, Tom L. Beauchamp, “On
Common Morality as Embodied Practice: A Reply to Kukla,” Cambridge Quarterly of Healthcare Ethics
23 (2014): 86–93; Carson Strong, “Kukla’s Argument against Common Morality as a Set of Precepts: On
Stranger Tides,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 93–99; and Kukla, “Response to
Strong and Beauchamp—at World’s End,” Cambridge Quarterly of Healthcare Ethics 23 (2014): 99–102.

11. 11. See Richard B. Brandt, “Morality and Its Critics,” in his Morality, Utilitarianism, and Rights
(Cambridge: Cambridge University Press, 1992), chap. 5; and Gregory Mellema, “Moral Ideals and Virtue
Ethics,” Journal of Ethics 14 (2010): 173–80. See also our discussion of moral ideals and supererogation
in Chapter 2, pp. 45–49.

12. 12. Talcott Parsons, Essays in Sociological Theory, rev. ed. (Glencoe, IL: Free Press, 1954), p. 372. See
further Jan Nolin, In Search of a New Theory of Professions (Borås, Sweden: University of Borås, 2008).

13. 13. See the excellent introduction to this subject in Edmund D. Pellegrino, “Codes, Virtues, and
Professionalism,” in Methods of Bioethics, ed. Daniel Sulmasy and Jeremy Sugarman, 2nd ed.
(Washington, DC: Georgetown University Press, 2010), pp. 91–108. For an overview of codes of medical
ethics, see Robert Baker, “Medical Codes and Oaths,” Bioethics [Formerly Encyclopedia of Bioethics], 4th
ed., ed. Bruce Jennings (Farmington Hills, MI: Gale, Cengage Learning, Macmillan Reference USA,
2014), vol. 4, pp. 1935–46. For a history and assessment of the Code of Ethics for Nurses of the American
Nurses Association, see Beth Epstein and Martha Turner, “The Nursing Code of Ethics: Its Value, Its
History,” Online Journal of Issues in Nursing 20, no. 2 (May 2015), available at
http://ojin.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/TableofConte
nts/Vol-20-2015/No2-May-2015/The-Nursing-Code-of-Ethics-Its-Value-Its-History.html (accessed June 3,
2018).

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14. 14. The American Medical Association Code of Ethics of 1847 was largely adapted from Thomas
Percival’s Medical Ethics; or a Code of Institutes and Precepts, Adapted to the Professional Conduct of
Physicians and Surgeons (Manchester, UK: S. Russell, 1803). See Donald E. Konold, A History of
American Medical Ethics 1847–1912 (Madison, WI: State Historical Society of Wisconsin, 1962), chaps.
1–3; Chester Burns, “Reciprocity in the Development of Anglo-American Medical Ethics,” in Legacies in
Medical Ethics, ed. Burns (New York: Science History Publications, 1977); and American Medical
Association, “History of the Code,” available at https://www.ama-assn.org/sites/default/files/media-
browser/public/ethics/ama-code-ethics-history.pdf (accessed March 23, 2018).

15. 15. For a related and rigorous critical analysis of Hippocratic and other medical codes, see Robert M.
Veatch’s influential views in his Hippocratic, Religious, and Secular Medical Ethics: The Points of
Conflict (Washington, DC: Georgetown University Press, 2012).

16. 16. Cf. the conclusions reached about medicine in N. D. Berkman, M. K. Wynia, and L. R. Churchill,
“Gaps, Conflicts, and Consensus in the Ethics Statements of Professional Associations, Medical Groups,
and Health Plans,” Journal of Medical Ethics 30 (2004): 395–401; Ryan M. Antiel, Farr A. Curlin, C.
Christopher Hook, and Jon C. Tilburt, “The Impact of Medical School Oaths and Other Professional
Codes of Ethics: Results of a National Physician Survey,” Archives of Internal Medicine 171 (2011): 469–
71; Robert D. Orr, Norman Pang, Edmund D. Pellegrino, and Mark Siegler, “Use of the Hippocratic Oath:
A Review of Twentieth Century Practice and a Content Analysis of Oaths Administered in Medical
Schools in the U.S. and Canada in 1993,” Journal of Clinical Ethics 8 (1997): 377–88; and A. C. Kao and
K. P. Parsi, “Content Analyses of Oaths Administered at U.S. Medical Schools in 2000,” Academic
Medicine 79 (2004): 882–87.

17. 17. Jay Katz, ed., Experimentation with Human Beings (New York: Russell Sage Foundation, 1972), pp.
ix–x.

18. 18. For an examination of different models of public bioethics, see James F. Childress, “Reflections on the
National Bioethics Advisory Commission and Models of Public Bioethics,” Goals and Practice of Public
Bioethics: Reflections on National Bioethics Commissions, special report, Hastings Center Report 47, no.
3 (2017): S20–S23, and several other essays in this special report. See also Society’s Choices: Social and
Ethical Decision Making in Biomedicine, ed. Ruth Ellen Bulger, Elizabeth Meyer Bobby, and Harvey V.
Fineberg, for the Committee on the Social and Ethical Impacts of Developments in Biomedicine, Division
of Health Sciences Policy, Institute of Medicine (Washington, DC: National Academies Press, 1995).

19. 19. See Allen Buchanan, “Philosophy and Public Policy: A Role for Social Moral Epistemology,” Journal
of Applied Philosophy 26 (2009): 276–90; Will Kymlicka, “Moral Philosophy and Public Policy: The
Case of New Reproductive Technologies,” in Philosophical Perspectives on Bioethics, ed. L. W. Sumner
and Joseph Boyle (Toronto: University of Toronto Press, 1996); Dennis Thompson, “Philosophy and
Policy,” Philosophy & Public Affairs 14 (Spring 1985): 205–18; Andrew I. Cohen, Philosophy, Ethics,
and Public Policy (London: Routledge, 2015); and a symposium on “The Role of Philosophers in the
Public Policy Process: A View from the President’s Commission,” with essays by Alan Weisbard and Dan
Brock, Ethics 97 (July 1987): 775–95.

20. 20. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14
(Cal. 1976).

21. 21. On the interactions of ethical and legal judgments (and the reasons for their interactions) on bioethical
issues, see Stephen W. Smith, John Coggan, Clark Hobson, et al., eds., Ethical Judgments: Re-Writing
Medical Law (Oxford: Hart, 2016).

22. 22. See John Lemmon, “Moral Dilemmas,” Philosophical Review 71 (1962): 139–58; Daniel Statman,
“Hard Cases and Moral Dilemmas,” Law and Philosophy 15 (1996): 117–48; Terrance McConnell, “Moral
Dilemmas,” Stanford Encyclopedia of Philosophy (Fall 2014 edition), ed. Edward N. Zalta, available at
https://plato.stanford.edu/archives/fall2014/entries/moral-dilemmas/ (accessed March 23, 2018); H. E.
Mason, “Responsibilities and Principles: Reflections on the Sources of Moral Dilemmas,” in Moral
Dilemmas and Moral Theory, ed. H. E. Mason (New York: Oxford University Press, 1996).

23. 23. Christopher W. Gowans, ed., Moral Dilemmas (New York: Oxford University Press, 1987); Walter
Sinnott-Armstrong, Moral Dilemmas (Oxford: Basil Blackwell, 1988); Edmund N. Santurri, Perplexity in
the Moral Life: Philosophical and Theological Considerations (Charlottesville: University Press of
Virginia, 1987). For an approach to dilemmas offered as an addition to our account in this chapter, see

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Joseph P. DeMarco, “Principlism and Moral Dilemmas: A New Principle,” Journal of Medical Ethics 31
(2005): 101–5.

24. 24. Some writers in biomedical ethics express reservations about the place of the particular principles we
propose in this book. See Pierre Mallia, The Nature of the Doctor–Patient Relationship: Health Care
Principles through the Phenomenology of Relationships with Patients (Springer Netherlands: Springer
Briefs in Ethics, 2013), esp. chap. 2, “Critical Overview of Principlist Theories”; K. Danner Clouser and
Bernard Gert, “A Critique of Principlism,” Journal of Medicine and Philosophy 15 (April 1990): 219–36;
Søren Holm, “Not Just Autonomy—The Principles of American Biomedical Ethics,” Journal of Medical
Ethics 21 (1994): 332–38; Peter Herissone-Kelly, “The Principlist Approach to Bioethics, and Its Stormy
Journey Overseas,” in Scratching the Surface of Bioethics, ed. Matti Häyry and Tuija Takala (Amsterdam:
Rodopi, 2003), pp. 65–77; and numerous essays in Principles of Health Care Ethics, ed. Raanan Gillon
and Ann Lloyd (London: Wiley, 1994); and Principles of Health Care Ethics, 2nd ed., ed. Richard E.
Ashcroft et al. (Chichester, UK: Wiley, 2007).

25. 25. Thomas Percival, Medical Ethics; or a Code of Institutes and Precepts, Adapted to the Professional
Interests of Physicians and Surgeons (Manchester: S. Russell, 1803 [and numerous later editions]). For
commentary on this classic work and its influence, see Edmund D. Pellegrino, “Percival’s Medical Ethics:
The Moral Philosophy of an 18th-Century English Gentleman,” Archives of Internal Medicine 146 (1986):
2265–69; Pellegrino, “Thomas Percival’s Ethics: The Ethics Beneath the Etiquette” (Washington DC:
Georgetown University, Kennedy Institute of Ethics, 1984), available at
https://repository.library.georgetown.edu/bitstream/handle/10822/712018/Pellegrino_M269.pdf?
sequence=1&isAllowed=n (accessed March 24, 2018); Robert B. Baker, Arthur L. Caplan, Linda L.
Emanuel, and Stephen R. Latham, eds., The American Medical Ethics Revolution: How the AMA’s Code of
Ethics Has Transformed Physicians’ Relationships to Patients, Professionals, and Society (Baltimore:
Johns Hopkins University Press, 1999).

26. 26. Procedural rules might also be interpreted as grounded in substantive rules of equality. If so
interpreted, the procedural rules could be said to have a justification in substantive rules.

27. 27. For a discussion of the distinction between pro tanto and prima facie, see Shelly Kagan, The Limits of
Morality (Oxford: Clarendon Press, 1989), p. 17. Kagan prefers pro tanto, rather than prima facie, and
notes that Ross used prima facie with effectively the same meaning, which some writers classify as a
mistake on Ross’s part. See further Andrew E. Reisner, “Prima Facie and Pro Tanto Oughts,” International
Encyclopedia of Ethics [online], first published February 1, 2013, available at
https://onlinelibrary.wiley.com/doi/full/10.1002/9781444367072.wbiee406 (accessed March 24, 2018).

28. 28. W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), esp. pp. 19–36, 88. On
important cautions about both the meaning and use of the related notion of “prima facie rights,” see Joel
Feinberg, Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980), pp.
226–29, 232; and Judith Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University
Press, 1990), pp. 118–29.

29. 29. Robert Nozick, “Moral Complications and Moral Structures,” Natural Law Forum 13 (1968): 1–50,
available at https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1136…naturallaw_forum (accessed
March 26, 2018); James J. Brummer, “Ross and the Ambiguity of Prima Facie Duty,” History of
Philosophy Quarterly 19 (2002): 401–22. See also Thomas E. Hill, Jr., “Moral Dilemmas, Gaps, and
Residues: A Kantian Perspective”; Walter Sinnott-Armstrong, “Moral Dilemmas and Rights”; and
Terrance C. McConnell, “Moral Residue and Dilemmas”—all in Moral Dilemmas and Moral Theory, ed.
Mason.

30. 30. For a similar view, see Ross, The Right and the Good, p. 28.
31. 31. Henry S. Richardson, “Specifying Norms as a Way to Resolve Concrete Ethical Problems,”

Philosophy & Public Affairs 19 (Fall 1990): 279–310; and Richardson, “Specifying, Balancing, and
Interpreting Bioethical Principles,” Journal of Medicine and Philosophy 25 (2000): 285–307, also in
Belmont Revisited: Ethical Principles for Research with Human Subjects, ed. James F. Childress, Eric M.
Meslin, and Harold T. Shapiro (Washington, DC: Georgetown University Press, 2005), pp. 205–27. See
also David DeGrazia, “Moving Forward in Bioethical Theory: Theories, Cases, and Specified
Principlism,” Journal of Medicine and Philosophy 17 (1992): 511–39.

32. 32. Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles,” p. 289.

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33. 33. For an excellent critical examination and case study of how the four-principles framework and
approach can and should be used as a practical instrument, see John-Stewart Gordon, Oliver Rauprich, and
Jochen Vollmann, “Applying the Four-Principle Approach,” Bioethics 25 (2011): 293–300, with a reply by
Tom Beauchamp, “Making Principlism Practical: A Commentary on Gordon, Rauprich, and Vollmann,”
Bioethics 25 (2011): 301–3.

34. 34. American Academy of Psychiatry and the Law, “Ethical Guidelines for the Practice of Forensic
Psychiatry,” as revised and adopted May 2005, section III: “The informed consent of the person
undergoing the forensic evaluation should be obtained when necessary and feasible. If the evaluee is not
competent to give consent, the evaluator should follow the appropriate laws of the jurisdiction. …
[P]sychiatrists should inform the evaluee that if the evaluee refuses to participate in the evaluation, this
fact may be included in any report or testimony. If the evaluee does not appear capable of understanding
the information provided regarding the evaluation, this impression should also be included in any report
and, when feasible, in testimony.” Available at http://www.aapl.org/ethics.htm (accessed February 19,
2018).

35. 35. Dennis H. Novack et al., “Physicians’ Attitudes toward Using Deception to Resolve Difficult Ethical
Problems,” Journal of the American Medical Association 261 (May 26, 1989): 2980–85. We return to
these problems in Chapter 8 (pp. 327–37).

36. 36. Richardson, “Specifying Norms,” p. 294. The word “always” in this formulation should be understood
to mean “in principle always.” Specification may, in some cases, reach a final form.

37. 37. Other prohibitions, such as rules against murder and rape, may be absolute only because of the
meaning of their terms. For example, to say “murder is categorically wrong” may be only to say
“unjustified killing is unjustified.”

38. 38. Timothy Quill and Penelope Townsend, “Bad News: Delivery, Dialogue, and Dilemmas,” Archives of
Internal Medicine 151 (March 1991): 463–68.

39. 39. See Alisa Carse, “Impartial Principle and Moral Context: Securing a Place for the Particular in Ethical
Theory,” Journal of Medicine and Philosophy 23 (1998): 153–69. For a defense of balancing as the best
method in such situations, see Joseph P. DeMarco and Paul J. Ford, “Balancing in Ethical Deliberations:
Superior to Specification and Casuistry,” Journal of Medicine and Philosophy 31 (2006): 483–97, esp.
491–93.

40. 40. See similar reflections in Lawrence Blum, Moral Perception and Particularity (New York:
Cambridge, 1994), p. 204.

41. 41. To the extent these six conditions incorporate moral norms, the norms are prima facie, not absolute.
Condition 3 is redundant if it cannot be violated when all of the other conditions are satisfied; but it is best
to be clear on this point, even if redundant.

42. 42. See James F. Childress and Ruth Gaare Bernheim, “Public Health Ethics: Public Justification and
Public Trust,” Bundesgundheitsblat: Gusundheitsforschung, Gesundheitsschutz 51, no. 2 (February 2008):
158–63; and Ruth Gaare Bernheim, James F. Childress, Richard J. Bonnie, and Alan L. Melnick,
Essentials of Public Health Ethics: Foundations, Tools, and Interventions (Boston: Jones and Bartlett,
2014), esp. chaps. 1, 2, and 8.

43. 43. For a criticism of our conclusion in this paragraph, see Marvin J. H. Lee, “The Problem of ‘Thick in
Status, Thin in Content,’ in Beauchamp and Childress’s Principlism,” Journal of Medical Ethics 36
(2010): 525–28. See further Angus Dawson and E. Garrard, “In Defence of Moral Imperialism: Four
Equal and Universal Prima Facie Principles,” Journal of Medical Ethics 32 (2006): 200–204; Walter
Sinnott-Armstrong, Moral Dilemmas, pp. 216–27; and D. D. Raphael, Moral Philosophy (Oxford: Oxford
University Press, 1981), pp. 64–65.

44. 44. See Bernard Gert, Charles M. Culver, and K. Danner Clouser, Bioethics: A Return to Fundamentals,
2nd ed., chap. 4; Clouser and Gert, “A Critique of Principlism,” pp. 219–36; Carson Strong, “Specified
Principlism,” Journal of Medicine and Philosophy 25 (2000): 285–307; John H. Evans, “A Sociological
Account of the Growth of Principlism,” Hastings Center Report 30 (September–October 2000): 31–38;
Evans, Playing God: Human Genetic Engineering and the Rationalization of Public Bioethical Debate
(Chicago: University of Chicago Press, 2002); and Evans, The History and Future of Bioethics: A
Sociological View (New York: Oxford University Press, 2011). For a critical analysis of Evans’s
arguments, particularly in Playing God, see James F. Childress, “Comments,” Journal of the Society of
Christian Ethics 24, no. 1 (2004): 195–204.

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2

Moral Character

Chapter 1 concentrated on moral norms in the form of principles, rules, obligations, and rights. This chapter
focuses on moral character, especially moral virtues, moral ideals, and moral excellence. These categories
complement those in the previous chapter. The moral norms discussed in Chapter 1 chiefly govern right and
wrong action. By contrast, character ethics and virtue ethics concentrate on the agent who performs actions and
the virtues that make agents morally worthy persons.1

The goals and structure of medicine, health care, public health, and research call for a deep appreciation of moral
virtues. What often matters most in health care interactions and in the moral life generally is not adherence to
moral rules but having a reliable character, good moral sense, and appropriate emotional responsiveness. Even
carefully specified principles and rules do not convey what occurs when parents lovingly play with and nurture
their children or when physicians and nurses exhibit compassion, patience, and responsiveness in their
encounters with patients and families. The feelings and concerns for others that motivate us to take actions often
cannot be reduced to a sense of obligation to follow rules. Morality would be a cold and uninspiring practice
without appropriate sympathy, emotional responsiveness, excellence of character, and heartfelt ideals that reach
beyond principles and rules.

Some philosophers have questioned the place of virtues in moral theory. They see virtues as less central than
action-guiding norms and as difficult to unify in a systematic theory, in part because there are many independent
virtues to be considered. Utilitarian Jeremy Bentham famously complained that there is “no marshaling” the
virtues and vices because “they are susceptible of no arrangement; they are a disorderly body, whose members
are frequently in hostility with one another. … Most of them are characterized by that vagueness which is a
convenient instrument for the poetical, but dangerous or useless to the practical moralist.”2

Although principles and virtues are different and learned in different ways, virtues are no less important in the
moral life, and in some contexts are probably more important. In Chapter 9, we examine virtue ethics as a type
of moral theory and address challenges and criticisms such as Bentham’s. In the first few sections of the present
chapter, we analyze the concept of virtue; examine virtues in professional roles; treat the moral virtues of care,
caregiving, and caring in health care; and explicate five other focal virtues in both health care and research.

THE CONCEPT OF MORAL VIRTUE

A virtue is a dispositional trait of character that is socially valuable and reliably present in a person, and a moral
virtue is a dispositional trait of character that is morally valuable and reliably present. If cultures or social groups
approve a trait and regard it as moral, their approval is not sufficient to qualify the trait as a moral virtue. Moral
virtue is more than a personal, dispositional trait that is socially approved in a particular group or culture.3 This
approach to the moral virtues accords with our conclusion in Chapter 1 that the common morality excludes
provisions found only in so-called cultural moralities and individual moralities. The moral virtues, like moral
principles, are part of the common morality.

Some define the term moral virtue as a disposition to act or a habit of acting in accordance with, and with the
aim of following, moral principles, obligations, or ideals.4 For example, they understand the moral virtue of
nonmalevolence as the trait of abstaining from causing harm to others when it would be wrong to cause harm.
However, this definition unjustifiably views virtues as merely derivative from and dependent on principles and
fails to capture the importance of moral motives. We care morally about people’s motives, and we care
especially about their characteristic motives and dispositions, that is, the motivational structures embedded in
their character. Persons who are motivated through impartial sympathy and personal affection, for example, are

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likely to meet our moral approval, whereas persons who act similarly, but are motivated merely by personal
ambition, do not.

Consider a person who discharges moral obligations only because they are moral requirements while intensely
disliking being obligated to place the interests of others above his or her personal interests and projects. This
person does not feel friendly toward or cherish others and respects their wishes only because moral obligation
requires it. If this person’s motive is deficient, a critical moral ingredient is missing even though he or she
consistently performs morally right actions and has a disposition to perform right actions. When a person
characteristically lacks an appropriate motivational structure, a necessary condition of virtuous character is
absent. The act may be right and the actor blameless, but neither the act nor the actor is virtuous. People may be
disposed to do what is right, intend to do it, and do it, while simultaneously yearning to avoid doing it. Persons
who characteristically perform morally right actions from such a motivational structure are not morally virtuous
even if they invariably perform the morally right action.

Such a person has a morally deficient character, and he or she performs morally right actions for reasons or
feelings disconnected from moral motivation. A philanthropist’s gift of a new wing of a hospital will be
recognized by hospital officials and by the general public as a generous gift, but if the philanthropist is
motivated only by a felt need for public praise and only makes the gift to gain such praise, there is a discordance
between those feelings and the performance of the praised action. Feelings, intentions, and motives are morally
important in a virtue theory in a way that may be lost or obscured in an obligation-based theory.5

VIRTUES IN PROFESSIONAL ROLES

Persons differ in their sets of character traits. Most individuals have some virtues and some vices while lacking
other virtues and vices. However, all persons with normal moral capacities can cultivate the character traits
centrally important to morality such as honesty, fairness, fidelity, truthfulness, and benevolence. In professional
life in health care and research, the traits that warrant encouragement and admiration often derive from role
responsibilities. Some virtues are essential for enacting these professional roles, and certain vices are intolerable
in professional life. Accordingly, we turn now to virtues that are critically important in professional and
institutional roles and practices in biomedical fields.

Virtues in Roles and Practices

Professional roles are grounded in institutional expectations and governed by established standards of
professional practice. Roles internalize conventions, customs, and procedures of teaching, nursing, doctoring,
and the like. Professional practice has traditions that require professionals to cultivate certain virtues. Standards
of virtue incorporate criteria of professional merit, and possession of these virtues disposes persons to act in
accordance with the objectives of the practices.

In the practice of medicine, several goods internal to the profession are appropriately associated with being a
good physician. These goods include specific moral and nonmoral skills in the care of patients, the application of
specific forms of knowledge, and the teaching of health behaviors. They are achievable only if one lives up to
the standards of the good physician, standards that in part define the practice. A practice is not merely a set of
technical skills. Practices should be understood in terms of the respect that practitioners have for the goods
internal to the practices. Although these practices sometimes need to be revised, the historical development of a
body of standards has established many practices now found at the heart of medicine, nursing, and public
health.6

Roles, practices, and virtues in medicine, nursing, and other health care and research professions reflect social
expectations as well as standards and ideals internal to these professions.7 The virtues we highlight in this
chapter are care—a fundamental virtue for health care relationships—along with five focal virtues found in all
health care professions: compassion, discernment, trustworthiness, integrity, and conscientiousness, all of which

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support and promote caring and caregiving. Elsewhere in this chapter and in later chapters, we discuss other
virtues, including respectfulness, nonmalevolence, benevolence, justice, truthfulness, and fidelity.

To illustrate the difference between standards of moral character in a profession and standards of technical
performance in a profession, we begin with an instructive study of surgical error. Charles L. Bosk’s influential
Forgive and Remember: Managing Medical Failure presents an ethnographic study of the way two surgical
services handle medical failure, especially failures by surgical residents in “Pacific Hospital” (a name substituted
for the hospitals actually studied).8 Bosk found that both surgical services distinguish, at least implicitly,
between several different forms of error or mistake. The first form is technical: A professional discharges role
responsibilities conscientiously, but his or her technical training or information still falls short of what the task
requires. Every surgeon will occasionally make this sort of mistake. A second form of error is judgmental: A
conscientious professional develops and follows an incorrect strategy. These errors are also to be expected.
Attending surgeons forgive momentary technical and judgmental errors but remember them in case a pattern
develops indicating that a surgical resident lacks the technical and judgmental skills to be a competent surgeon.
A third form of error is normative: A physician violates a norm of conduct or fails to possess a moral skill,
particularly by failing to discharge moral obligations conscientiously or by failing to acquire and exercise critical
moral virtues such as conscientiousness. Bosk concludes that surgeons regard technical and judgmental errors as
less important than moral errors, because every conscientious person can be expected to make “honest errors” or
“good faith errors,” whereas moral errors such as failures of conscientiousness are considered profoundly serious
when a pattern indicates a defect of character.

Bosk’s study indicates that persons of high moral character acquire a reservoir of goodwill in assessments of
either the praiseworthiness or the blameworthiness of their actions. If a conscientious surgeon and another
surgeon who is not adequately conscientious make the same technical or judgmental errors, the conscientious
surgeon will not be subjected to moral blame to the same degree as the other surgeon.

Virtues in Different Professional Models

Professional virtues were historically integrated with professional obligations and ideals in codes of health care
ethics. Insisting that the medical profession’s “prime objective” is to render service to humanity, an American
Medical Association (AMA) code in effect from 1957 to 1980 urged the physician to be “upright” and “pure in
character and … diligent and conscientious in caring for the sick.” It endorsed the virtues that Hippocrates
commended: modesty, sobriety, patience, promptness, and piety. However, in contrast to its first code of 1847,
the AMA over the years has increasingly de-emphasized virtues in its codes. The 1980 version for the first time
eliminated all trace of the virtues except for the admonition to expose “those physicians deficient in character or
competence.” This pattern of de-emphasis regrettably still continues.

Thomas Percival’s 1803 book, Medical Ethics, is a classic example of an attempt to establish the proper set of
virtues in medicine. Starting from the assumption that the patient’s best medical interest is the proper goal of
medicine, Percival reached conclusions about the good physician’s traits of character, which were primarily tied
to responsibility for the patient’s medical welfare.9 This model of medical ethics supported medical paternalism
with effectively no attention paid to respect for patients’ autonomous choices.

In traditional nursing, where the nurse was often viewed as the “handmaiden” of the physician, the nurse was
counseled to cultivate the passive virtues of obedience and submission. In contemporary models in nursing, by
contrast, active virtues have become more prominent. For example, the nurse’s role is now often regarded as one
of advocacy for patients.10 Prominent virtues include respectfulness, considerateness, justice, persistence, and
courage.11 Attention to patients’ rights and preservation of the nurse’s integrity also have become increasingly
prominent in some contemporary models.

The conditions under which ordinarily praiseworthy virtues become morally unworthy present thorny ethical
issues. Virtues such as loyalty, courage, generosity, kindness, respectfulness, and benevolence at times lead
persons to act inappropriately and unacceptably. For instance, the physician or nurse who acts kindly and loyally

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by not reporting the incompetence of a fellow physician or nurse acts unethically. This failure to report
misconduct does not suggest that loyalty and kindness are not virtues. It indicates only that the virtues need to be
accompanied by an understanding of what is right and good and of what deserves loyalty, kindness, generosity,
and the like.

THE CENTRAL VIRTUE OF CARING

As the language of health care, medical care, and nursing care suggests, the virtue of care, or caring, is
prominent in professional ethics. We treat this virtue as fundamental in relationships, practices, and actions in
health care. In explicating this family of virtues we draw on what has been called the ethics of care, which we
interpret as a form of virtue ethics.12 The ethics of care emphasizes traits valued in intimate personal
relationships such as sympathy, compassion, fidelity, and love. Caring refers to care for, emotional commitment
to, and willingness to act on behalf of persons with whom one has a significant relationship. Caring for is
expressed in actions of “caregiving,” “taking care of,” and “due care.” The nurse’s or physician’s trustworthiness
and quality of care and sensitivity in the face of patients’ problems, needs, and vulnerabilities are integral to
their professional moral lives.

The ethics of care emphasizes what physicians and nurses do—for example, whether they break or maintain
confidentiality—and how they perform those actions, which motives and feelings underlie them, and whether
their actions promote or thwart positive relationships.

The Origins of the Ethics of Care

The ethics of care, understood as a form of philosophical ethics, originated and continues to flourish in feminist
writings. The earliest works emphasized how women display an ethic of care, by contrast to men, who
predominantly exhibit an ethic of rights and obligations. Psychologist Carol Gilligan advanced the influential
hypothesis that “women speak in a different voice”—a voice that traditional ethical theory failed to appreciate.
She discovered “the voice of care” through empirical research involving interviews with girls and women. This
voice, she maintained, stresses empathic association with others, not based on “the primacy and universality of
individual rights, but rather on … a very strong sense of being responsible.”13

Gilligan identified two modes of moral thinking: an ethic of care and an ethic of rights and justice. She did not
claim that these two modes of thinking strictly correlate with gender or that all women or all men speak in the
same moral voice.14 She maintained only that men tend to embrace an ethic of rights and justice that uses quasi-
legal terminology and impartial principles, accompanied by dispassionate balancing and conflict resolution,
whereas women tend to affirm an ethic of care that centers on responsiveness in an interconnected network of
needs, care, and prevention of harm.15

Criticisms of Traditional Theories by Proponents of an Ethics of Care

Proponents of the care perspective often criticize traditional ethical theories that tend to de-emphasize virtues of
caring. Two criticisms merit consideration here.16

Challenging impartiality. Some proponents of the care perspective argue that theories of obligation unduly
telescope morality by overemphasizing detached fairness. This orientation is suitable for some moral
relationships, especially those in which persons interact as equals in a public context of impersonal justice and
institutional constraints, but moral detachment also may reflect a lack of caring responsiveness. In the extreme
case, detachment becomes uncaring indifference. Lost in the detachment of impartiality is an attachment to what
we care about most and is closest to us—for example, our loyalty to family, friends, and groups. Here partiality
toward others is morally permissible and is an expected form of interaction. This kind of partiality is a feature of
the human condition without which we might impair or sever our most important relationships.17

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Proponents of a care ethics do not recommend complete abandonment of principles if principles are understood
to allow room for discretionary and contextual judgment. However, some defenders of the ethics of care find
principles largely irrelevant, ineffectual, or unduly constrictive in the moral life. A defender of principles could
hold that principles of care, compassion, and kindness tutor our responses in caring, compassionate, and kind
ways. But this attempt to rescue principles seems rather empty. Moral experience confirms that we often do rely
on our emotions, capacity for sympathy, sense of friendship, and sensitivity to find appropriate moral responses.
We could produce rough generalizations about how caring clinicians should respond to patients, but such
generalizations cannot provide adequate guidance for all interactions. Each situation calls for responses beyond
following rules, and actions that are caring in one context may be offensive or even harmful in another.

Relationships and emotion. The ethics of care places special emphasis on mutual interdependence and
emotional responsiveness. Many human relationships in health care and research involve persons who are
vulnerable, dependent, ill, and frail. Feeling for and being immersed in the other person are vital aspects of a
moral relationship with them.18 A person seems morally deficient if he or she acts according to norms of
obligation without appropriately aligned feelings, such as concern and sympathy for a patient who is suffering.
Good health care often involves insight into the needs of patients and considerate attentiveness to their
circumstances.19

In the history of human experimentation, those who first recognized that some subjects of research were
brutalized, subjected to misery, or placed at unjustifiable risk were persons able to feel sympathy, compassion,
disgust, and outrage about the situation of these research subjects. They exhibited perception of and sensitivity
to the feelings of subjects where others lacked comparable perceptions, sensitivities, and responses. This
emotional sensitivity does not reduce moral response to emotional response. Caring has a cognitive dimension
and requires a range of moral skills that involve insight into and understanding of another’s circumstances,
needs, and feelings.

One proponent of the ethics of care argues that action is sometimes appropriately principle-guided, but not
necessarily always governed by or derived from principles.20 This statement moves in the right direction for
construction of a comprehensive moral framework. We need not reject principles of obligation in favor of virtues
of caring, but moral judgment involves moral skills beyond those of specifying and balancing general principles.
An ethic that emphasizes the virtues of caring well serves health care because it is close to the relationships and
processes of decision making found in clinical contexts, and it provides insights into basic commitments of
caring and caretaking. It also liberates health professionals from the narrow conceptions of role responsibilities
that have been delineated in some professional codes of ethics.

FIVE FOCAL VIRTUES

We now turn to five focal virtues for health professionals: compassion, discernment, trustworthiness, integrity,
and conscientiousness. These virtues are important for the development and expression of caring, which we have
presented as a fundamental orienting virtue in health care. These five additional virtues provide a moral compass
of character for health professionals that builds on centuries of thought about health care ethics.21

Compassion

Compassion, says Edmund Pellegrino, is a “prelude to caring.”22 The virtue of compassion combines an attitude
of active regard for another’s welfare together with sympathy, tenderness, and discomfort at another’s
misfortune or suffering.23 Compassion presupposes sympathy, has affinities with mercy, and is expressed in acts
of beneficence that attempt to alleviate the misfortune or suffering of another person.

Nurses and physicians must understand the feelings and experiences of patients to respond appropriately to them
and their illnesses and injuries—hence the importance of empathy, which involves sensing or even
reconstructing another person’s mental experience, whether that experience is negative or positive.24 As

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important as empathy is for compassion and other virtues, the two are different, and empathy does not always
lead to compassion. Some literature on professionalism in medicine and health care now focuses on empathy
rather than compassion, but this literature risks making the mistake of viewing empathy alone as sufficient for
humanizing medicine and health care while overlooking its potential dangers.25

Compassion generally focuses on others’ pain, suffering, disability, or misery—the typical occasions for
compassionate response in health care. Using the language of sympathy, eighteenth-century philosopher David
Hume pointed to a typical circumstance of compassion in surgery and explained how such feelings arise:

Were I present at any of the more terrible operations of surgery, ‘tis certain, that even before it
begun, the preparation of the instruments, the laying of the bandages in order, the heating of the
irons, with all the signs of anxiety and concern in the patient and assistants, wou’d have a great
effect upon my mind, and excite the strongest sentiments of pity and terror. No passion of another
discovers itself immediately to the mind. We are only sensible of its causes or effects. From these
we infer the passion: And consequently these give rise to our sympathy.26

Physicians and nurses who express little or no compassion in their behavior may fail to provide what patients
need most. The physician, nurse, or social worker altogether lacking in the appropriate display of compassion
has a moral weakness. However, compassion also can cloud judgment and preclude rational and effective
responses. In one reported case, a long-alienated son wanted to continue a futile and painful treatment for his
near-comatose father in an intensive care unit (ICU) to have time to “make his peace” with his father. Although
the son understood that his alienated father had no cognitive capacity, the son wanted to work through his sense
of regret and say a proper good-bye. Some hospital staff argued that the patient’s grim prognosis and pain,
combined with the needs of others waiting to receive care in the ICU, justified stopping the treatment, as had
been requested by the patient’s close cousin and informal guardian. Another group in the unit regarded continued
treatment as an appropriate act of compassion toward the son, who they thought should have time to express his
farewells and regrets to make himself feel better about his father’s death. The first group, by contrast, viewed
this expression of compassion as misplaced because of the patient’s prolonged agony and dying. In effect, those
in the first group believed that the second group’s compassion prevented clear thinking about primary
obligations to this patient.27

Numerous writers in the history of ethical theory have proposed a cautious approach to compassion. They argue
that a passionate, or even a compassionate, engagement with others can blind reason and prevent impartial
reflection. Health care professionals understand and appreciate this phenomenon. Constant contact with
suffering can overwhelm and even paralyze a compassionate physician or nurse. Impartial judgment sometimes
gives way to impassioned decisions, and emotional burnout can arise. To counteract this problem, medical
education and nursing education are well designed when they inculcate detachment alongside compassion. The
language of detached concern and compassionate detachment came to the fore in this context.

Discernment

The virtue of discernment brings sensitive insight, astute judgment, and understanding to bear on action.
Discernment involves the ability to make fitting judgments and reach decisions without being unduly influenced
by extraneous considerations, fears, personal attachments, and the like. Some writers closely associate
discernment with practical wisdom, or phronesis, to use Aristotle’s widely used term. A person of practical
wisdom knows which ends to choose, knows how to realize them in particular circumstances, and carefully
selects from among the range of possible actions, while keeping emotions within proper bounds. In Aristotle’s
model, the practically wise person understands how to act with the right intensity of feeling, in just the right
way, at just the right time, with a proper balance of reason and desire.28

A discerning person is disposed to understand and perceive what circumstances demand in the way of human
responsiveness. For example, a discerning physician will see when a despairing patient needs comfort rather
than privacy, and vice versa. If comfort is the right choice, the discerning physician will find the right type and

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level of consolation to be helpful rather than intrusive. If a rule guides action in a particular case, seeing how to
best follow the rule involves a form of discernment that is independent of seeing that the rule applies.

Accordingly, the virtue of discernment involves understanding both that and how principles and rules apply.
Acts of respect for autonomy and beneficence therefore will vary in health care contexts, and the ways in which
clinicians discerningly implement these principles in the care of patients will be as different as the many ways in
which devoted parents care for their children.

Trustworthiness

Virtues, Annette Baier maintains, “are personal traits that contribute to a good climate of trust between people,
when trust is taken to be acceptance of being, to some degree and in some respects, in another’s power.”29 Trust
is a confident belief in and reliance on the moral character and competence of another person, often a person
with whom one has an intimate or established relationship. Trust entails a confidence that another will reliably
act with the right motives and feelings and in accordance with appropriate moral norms.30 To be trustworthy is
to warrant another’s confidence in one’s character and conduct.

Traditional ethical theories rarely mention either trust or trustworthiness. However, Aristotle took note of one
important aspect of trust and trustworthiness. He maintained that when relationships are voluntary and among
intimates, by contrast to legal relationships among strangers, it is appropriate for the law to forbid lawsuits for
harms that occur. Aristotle reasoned that intimate relationships involving “dealings with one another as good and
trustworthy” hold persons together more than “bonds of justice” do.31

Nothing is more valuable in health care organizations and contexts than the maintenance of a culture of trust.
Trust and trustworthiness are essential when patients are vulnerable and place their hope and their confidence in
health care professionals. A true climate of trust is endangered in contemporary health care institutions, as
evidenced by the number of medical malpractice suits and adversarial relations between health care
professionals and the public. Overt distrust has been engendered by mechanisms of managed care, because of
the incentives some health care organizations create for physicians to limit the amount and kinds of care they
provide to patients. Appeals have increased for ombudsmen, patient advocates, legally binding “directives” to
physicians, and the like. Among the contributing causes of the erosion of a climate of trust are the loss of
intimate contact between physicians and patients, the increased use of specialists, the lack of adequate access to
adequate health care insurance, and the growth of large, impersonal, and bureaucratic medical institutions.32

Integrity

Some writers in bioethics hold that the primary virtue in health care is integrity.33 People often justify their
actions or refusals to act on grounds that they would otherwise compromise or sacrifice their integrity. Later in
this chapter we discuss appeals to integrity as invocations of conscience, but we confine attention at present to
the virtue of integrity.

The central place of integrity in the moral life is beyond dispute, but what the term means is less clear. In its
most general sense, “moral integrity” means soundness, reliability, wholeness, and integration of moral
character. In a more restricted sense, the term refers to objectivity, impartiality, and fidelity in adherence to
moral norms. Accordingly, the virtue of integrity represents two aspects of a person’s character. The first is a
coherent integration of aspects of the self—emotions, aspirations, knowledge, and the like—so that each
complements and does not frustrate the others. The second is the character trait of being faithful to moral values
and standing up in their defense when necessary. A person can lack moral integrity in several respects—for
example, through hypocrisy, insincerity, bad faith, and self-deception. These vices represent breaks in the
connections among a person’s moral convictions, emotions, and actions. The most common deficiency is
probably a lack of sincerely and firmly held moral convictions, but no less important is the failure to act
consistently on the moral beliefs that one does hold.

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Problems in maintaining integrity may also arise from a conflict of moral norms, or from moral demands that
require persons to halt or abandon personal goals and projects. Persons may experience a sense of loss of their
autonomy and feel violated by the demand to sacrifice their personal commitments and objectives.34 For
example, if a nurse is the only person in her family who can properly manage her mother’s health, health care,
prescription medications, nursing home arrangements, explanations to relatives, and negotiations with
physicians, little time may be left for her personal projects and commitments. Such situations can deprive
persons of the liberty to structure and integrate their lives as they choose. If a person has structured his or her life
around personal goals that are ripped away by the needs and agendas of others, a loss of personal integrity
occurs.

Problems of professional integrity often center on wrongful conduct in professional life. When breaches of
professional integrity involve violations of professional standards, they are viewed as violations of the rules of
professional associations, codes of medical ethics, or medical traditions,35 but this vision of integrity needs to be
broadened. Breaches of professional integrity also occur when a physician prescribes a drug that is no longer
recommended for the outcome needed, enters into a sexual relationship with a patient, or follows a living will
that calls for a medically inappropriate intervention.

Sometimes conflicts arise between a person’s sense of moral integrity and what is required for professional
integrity. Consider medical practitioners who, because of their religious commitments to the sanctity of life, find
it difficult to participate in decisions not to do everything possible to prolong life. To them, participating in
removing ventilators and intravenous fluids from patients, even from patients with a clear advance directive,
violates their moral integrity. Their commitments may create morally troublesome situations in which they must
either compromise their fundamental commitments or withdraw from the care of the patient. Yet compromise
seems what a person, or an organization, of integrity cannot do, because it involves the sacrifice of deep moral
commitments.36

Health care facilities cannot entirely eliminate these and similar problems of staff disagreement and conflicting
commitments, but persons with the virtues of patience, humility, and tolerance can help reduce the problems.
Situations that compromise integrity can be ameliorated if participants anticipate the problem before it arises and
recognize the limits and fallibility of their personal moral views. Participants in a dispute may also have recourse
to consultative institutional processes, such as hospital ethics committees. However, it would be ill-advised to
recommend that a person of integrity can and should always negotiate and compromise his or her values in an
intrainstitutional confrontation. There is something ennobling and admirable about the person or organization
that refuses to compromise beyond a certain carefully considered moral threshold. To compromise below the
threshold of integrity is simply to lose it.

Conscientiousness

The subject of integrity and compromise leads directly to a discussion of the virtue of conscientiousness and
accounts of conscience. An individual acts conscientiously if he or she is motivated to do what is right because it
is right, has worked with due diligence to determine what is right, intends to do what is right, and exerts
appropriate effort to do so. Conscientiousness is the character trait of acting in this way.

Conscience and conscientiousness. Conscience has often been viewed as a mental faculty of, and authority for,
moral decision making.37 Slogans such as “Let your conscience be your guide” suggest that conscience is the
final authority in moral justification. However, such a view fails to capture the nature of either conscience or
conscientiousness, as the following case presented by Bernard Williams helps us see: Having recently completed
his PhD in chemistry, George has not been able to find a job. His family has suffered from his failure. They are
short of money, his wife has had to take additional work, and their small children have been subjected to
considerable strain, uncertainty, and instability. An established chemist can get George a position in a laboratory
that pursues research on chemical and biological weapons. Despite his perilous financial and familial
circumstances, George concludes that he cannot accept this position because of his conscientious opposition to
chemical and biological warfare. The senior chemist notes that the research will continue no matter what George

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decides. Furthermore, if George does not take this position, it will be offered to another young man who would
vigorously pursue the research. Indeed, the senior chemist confides, his concern about the other candidate’s
nationalistic fervor and uncritical zeal for research in chemical and biological warfare motivated him to
recommend George for the job. George’s wife is puzzled and hurt by George’s reaction. She sees nothing wrong
with the research. She is profoundly concerned about their children’s problems and the instability of their family.
Nonetheless, George forgoes this opportunity both to help his family and to prevent a destructive fanatic from
obtaining the position. He says his conscience stands in the way.38

Conscience, as this example suggests, is neither a special moral faculty nor a self-justifying moral authority. It is
a form of self-reflection about whether one’s acts are obligatory or prohibited, right or wrong, good or bad,
virtuous or vicious. It involves an internal sanction that comes into play through critical reflection. When
individuals recognize their acts as violations of an appropriate standard, this sanction often appears as a bad
conscience in the form of feelings of remorse, guilt, shame, disunity, or disharmony. A conscience that sanctions
conduct in this way does not signify bad moral character. To the contrary, this experience of conscience is most
likely to occur in persons of strong moral character and may even be a necessary condition of morally good
character.39 Kidney donors have been known to say, “I had to do it. I couldn’t have backed out, not that I had the
feeling of being trapped, because the doctors offered to get me out. I just had to do it.”40 Such judgments derive
from ethical standards that are sufficiently powerful that violating them would diminish integrity and result in
guilt or shame.41

When people claim that their actions are conscientious, they sometimes feel compelled by conscience to resist
others’ authoritative demands. Instructive examples are found in military physicians who believe they must
answer first to their consciences and cannot plead “superior orders” when commanded by a superior officer to
commit what they believe to be a moral wrong. Agents sometimes act out of character in order to perform what
they judge to be the morally appropriate action. For example, a normally cooperative and agreeable physician
may indignantly, but justifiably, protest an insurance company’s decision not to cover the costs of a patient’s
treatment. Such moral indignation and outrage can be appropriate and admirable.

Conscientious refusals. Conscientious objections and refusals by physicians, nurses, pharmacists, and other
health care professionals raise difficult issues for public policy, professional organizations, and health care
institutions. Examples are found in a physician’s refusal to honor a patient’s legally valid advance directive to
withdraw artificial nutrition and hydration, a nurse’s refusal to participate in an abortion or sterilization
procedure, and a pharmacist’s refusal to fill a prescription for an emergency contraception. There are good
reasons to promote conscientiousness and to respect such acts of conscience in many, though not all, cases.

Respecting conscientious refusals in health care is an important value, and these refusals should be
accommodated unless there are overriding conflicting values. Banning or greatly restricting conscientious
refusals in health care could have several negative consequences. It could, according to one analysis, negatively
affect the type of people who choose medicine as their vocation and how practicing physicians view and
discharge professional responsibilities. It could also foster “callousness” and encourage physicians’
“intolerance” of diverse moral beliefs among their patients (and perhaps among their colleagues as well).42

These possible negative effects are somewhat speculative, but they merit consideration in forming institutional
and public policies.

Also meriting consideration is that some conscientious refusals adversely affect patients’ and others’ legitimate
interests in (1) timely access, (2) safe and effective care, (3) respectful care, (4) nondiscriminatory treatment, (5)
care that is not unduly burdensome, and (6) privacy and confidentiality. Hence, public policy, professional
associations, and health care institutions should seek to recognize and accommodate conscientious refusals as
long as they can do so without seriously compromising patients’ rights and interests. The metaphor of balancing
professionals’ and patients’ rights and interests is commonly used to guide efforts to resolve such conflicts, but it
offers only limited guidance and no single model of appropriate response covers all cases.43

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Institutions such as hospitals and pharmacies can often ensure the timely performance of needed or requested
services while allowing conscientious objectors not to perform those services.44 However, ethical problems arise
when, for example, a pharmacist refuses, on grounds of complicity in moral wrongdoing, to transfer a
consumer’s prescription or to inform the consumer of pharmacies that would fill the prescription. According to
one study, only 86% of US physicians surveyed regard themselves as obligated to disclose information about
morally controversial medical procedures to patients, and only 71% of US physicians recognize an obligation to
refer patients to another physician for such controversial procedures.45 Consequently, millions of patients in the
United States may be under the care of physicians who do not recognize these obligations or are undecided
about them.

At a minimum, in our view, health care professionals have an ethical duty to inform prospective employers and
prospective patients, clients, and consumers in advance of their personal conscientious objections to performing
vital services. Likewise, they have an ethical duty to disclose options for obtaining legal, albeit morally
controversial, services; and sometimes they have a duty to provide a referral for those services. They also may
have a duty to perform the services in emergency circumstances when the patient is at risk of adverse health
effects and a timely referral is not possible.46

Determining the appropriate scope of protectable conscientious refusals is a vexing problem, particularly when
the refusals involve expansive notions of what counts as assisting or participating in the performance of a
personally objectionable action. Such expansive notions sometimes include actions that are only indirectly
related to the objectionable procedure. For example, some nurses have claimed conscientious exemption from all
forms of participation in the care of patients having an abortion or sterilization, including filling out admission
forms or providing post-procedure care. It is often difficult and sometimes impractical for institutions to pursue
their mission while exempting objectors to such broadly delineated forms of participation in a procedure.

MORAL IDEALS

We argued in Chapter 1 that norms of obligation in the common morality constitute a moral minimum of
requirements that govern everyone. These standards differ from extraordinary moral standards that are not
required of any person. Moral ideals such as extraordinary generosity are rightly admired and approved by all
morally committed persons, and in this respect they are part of the common morality. Extraordinary moral
standards come from a morality of aspiration in which individuals, communities, or institutions adopt high ideals
not required of others. We can praise and admire those who live up to these ideals, but we cannot blame or
criticize persons who do not pursue the ideals.

A straightforward example of a moral ideal in biomedical ethics is found in “expanded access” or
“compassionate use” programs that—prior to regulatory approval—authorize access to an investigational drug
or device for patients with a serious or immediately life-threatening disease or condition. These patients have
exhausted available therapeutic options and are situated so that they cannot participate in a clinical trial of a
comparable investigational product. Although it is compassionate and justified to provide some investigational
products for therapeutic use, it is generally not obligatory to do so. These programs are compassionate,
nonobligatory, and motivated by a goal of providing a good to these patients. The self-imposed moral
commitment by the sponsors of the investigational product usually springs from moral ideals of communal
service or providing a benefit to individual patients. (See Chapter 6, pp. 224–27, for additional discussion of
expanded access programs.)

With the addition of moral ideals, we now have four categories pertaining to moral action: (1) actions that are
right and obligatory (e.g., truth-telling); (2) actions that are wrong and prohibited (e.g., murder and rape); (3)
actions that are optional and morally neutral, and so neither wrong nor obligatory (e.g., playing chess with a
friend); and (4) actions that are optional but morally meritorious and praiseworthy (e.g., sending flowers to a
hospitalized friend). We concentrated on the first two in Chapter 1, occasionally mentioning the third. We now
focus exclusively on the fourth.

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Supererogation and Virtue

Supererogation is a category of moral ideals pertaining principally to ideals of action, but it has important links
both to virtues and to Aristotelian ideals of moral excellence.47 The etymological root of supererogation means
paying or performing beyond what is owed or, more generally, doing more than is required. This notion has four
essential conditions. First, supererogatory acts are optional and neither required nor forbidden by common-
morality standards of obligation. Second, supererogatory acts exceed what the common morality of obligation
demands, but at least some moral ideals are endorsed by all persons committed to the common morality. Third,
supererogatory acts are intentionally undertaken to promote the welfare interests of others. Fourth,
supererogatory acts are morally good and praiseworthy in themselves and are not merely acts undertaken with
good intentions.

Despite the first condition, individuals who act on moral ideals do not always consider their actions to be
morally optional. Many heroes and saints describe their actions in the language of ought, duty, and necessity: “I
had to do it.” “I had no choice.” “It was my duty.” The point of this language is to express a personal sense of
obligation, not to state a general obligation. The agent accepts, as a pledge or assignment of personal
responsibility, a norm that lays down what ought to be done. At the end of Albert Camus’s The Plague, Dr.
Rieux decides to make a record of those who fought the pestilence. It is to be a record, he says, of “what had to
be done … despite their personal afflictions, by all who, while unable to be saints but refusing to bow down to
pestilences, strive their utmost to be healers.”48 Such healers accept exceptional risks and thereby exceed the
obligations of the common morality and of professional associations and traditions.

Many supererogatory acts would be morally obligatory were it not for some abnormal adversity or risk in the
face of which the individual elects not to invoke an allowed exemption based on the adversity or risk.49 If
persons have the strength of character that enables them to resist extreme adversity or assume additional risk to
fulfill their own conception of their obligations, it makes sense to accept their view that they are under a self-
imposed obligation. The hero who says, “I was only doing my duty,” is speaking as one who accepts a standard
of moral excellence. This hero does not make a mistake in regarding the action as personally required and can
view failure as grounds for guilt, although no one else is free to evaluate the act as a moral failure.

Despite the language of “exceptional” and “extreme adversity,” not all supererogatory acts are extraordinarily
arduous, costly, or risky. Examples of less demanding forms of supererogation include generous gift-giving,
volunteering for public service, forgiving another’s costly error, and acting from exceptional kindness. Many
everyday actions exceed obligation without reaching the highest levels of supererogation. For example, a nurse
may put in extra hours of work during the day and return to the hospital at night to visit patients. This nurse’s
actions are morally excellent, but he or she does not thereby qualify as a saint or hero.

Often we are uncertain whether an action exceeds obligation because the boundaries of obligation and
supererogation are ill defined. There may be no clear norm of action, only a virtue of character at work. For
example, what is a nurse’s role obligation to desperate, terminally ill patients who cling to the nurse for comfort
in their few remaining days? If the obligation is that of spending forty hours a week conscientiously fulfilling a
job description, the nurse exceeds that obligation by just a few off-duty visits to patients. If the obligation is
simply to help patients overcome burdens and meet a series of challenges, a nurse who does so while displaying
extraordinary patience, fortitude, and friendliness well exceeds the demands of obligation. Health care
professionals sometimes live up to what would ordinarily be a role obligation (such as complying with basic
standards of care) while making a sacrifice or taking an additional risk. These cases exceed obligation, but they
may not qualify as supererogatory actions.

The Continuum from Obligation to Supererogation

Our analysis may seem to suggest that actions should be classified as either obligatory or beyond the obligatory.
The better view, however, is that actions sometimes do not fit neatly into these categories because they fall
between the two. Common morality distinctions and ethical theory are not precise enough to determine whether

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all actions are morally required or morally elective. This problem is compounded in professional ethics, because
professional roles engender obligations that do not bind persons who do not occupy the relevant professional
roles. Hence, the two “levels” of the obligatory and the supererogatory lack sharp boundaries both in the
common morality and in professional ethics.

Actions may be strictly obligatory, beyond the obligatory, or somewhere between these two classifications. A
continuum runs from strict obligation (such as the obligations in the core principles and rules in the common
morality) through weaker obligations that are still within the scope of the morally required (such as double-
checking one’s professional work to be sure that no medical errors have occurred), and on to the domain of the
morally nonrequired and the exceptionally virtuous. The nonrequired starts with low-level supererogation, such
as walking a visitor lost in a hospital’s corridors to a doctor’s office. Here an absence of generosity or kindness
in helping someone may constitute a small defect in the moral life rather than a failure of obligation. The
continuum ends with high-level supererogation, such as heroic acts of self-sacrifice, as in highly risky medical
self-experimentation. A continuum exists on each level. The following diagram represents the continuum.

images

This continuum moves from strict obligation to the most arduous and elective moral ideal. The horizontal line
represents a continuum with rough, not sharply defined, breaks. The middle vertical line divides the two general
categories but is not meant to indicate a sharp break. Accordingly, the horizontal line expresses a continuum
across the four lower categories and expresses the scope of the common morality’s reach into the domains of
both moral obligations and nonobligatory moral ideals.

Joel Feinberg argues that supererogatory acts are “located on an altogether different scale than obligations.”50

The preceding diagram suggests that this comment is correct in one respect but incorrect in another. The right
half of the diagram is not scaled by obligation, whereas the left half is. In this respect, Feinberg’s comment is
correct. However, the full horizontal line is connected by a single scale of moral value in which the right is
continuous with the left. For example, obligatory acts of beneficence and supererogatory acts of beneficence are
on the same scale because they are morally of the same kind. The domain of supererogatory ideals is continuous
with the domain of norms of obligation by exceeding those obligations in accordance with the several defining
conditions of supererogation listed previously.

The Place of Ideals in Biomedical Ethics

Many beneficent actions by health care professionals straddle the territory marked in the preceding diagram
between Obligation and Beyond Obligation (in particular, the territory between [2] and [3]). Matters become
more complicated when we introduce the distinction discussed in Chapter 1 between professional obligations
and obligations incumbent on everyone. Many moral duties established by roles in health care are not moral
obligations for persons not in these roles. These duties in medicine and nursing are profession-relative, and some
are role obligations even when not formally stated in professional codes. For example, the expectation that
physicians and nurses will encourage and cheer despondent patients is a profession-imposed obligation, though
not one typically incorporated in a professional code of ethics.

Some customs in the medical community are not well established as obligations, such as the belief that
physicians and nurses should efface self-interest and take risks in attending to patients. The nature of
“obligations” when caring for patients with SARS (severe acute respiratory syndrome), Ebola, and other
diseases with a significant risk of transmission and a significant mortality rate has been controversial, and
professional codes and medical association pronouncements have varied.51 One of the strongest statements of
physician duty appeared in the previously mentioned original 1847 Code of Medical Ethics of the American
Medical Association (AMA): “when pestilence prevails, it is their [physicians’] duty to face the danger, and to
continue their labours for the alleviation of the suffering, even at the jeopardy of their own lives.”52 This
statement was retained in subsequent versions of the AMA code until the 1950s, when the statement was
eliminated, perhaps in part because of a false sense of the permanent conquest of dangerous contagious diseases.

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We usually cannot resolve controversies about duty in face of risk without determining the level of risk—in
terms of both the probability and the seriousness of harm—that professionals are expected to assume and setting
a threshold beyond which the level of risk is so high that it renders action optional rather than obligatory. The
profound difficulty of drawing this line should help us appreciate why some medical associations have urged
their members to be courageous and treat patients with potentially lethal infectious diseases, while other
associations have advised their members that treatment is optional in many circumstances.53 Still others have
taken the view that both virtue and obligation converge to the conclusion that health care professionals should
set aside self-interest, within limits, and that the health care professions should take actions to ensure appropriate
care.54

Confusion occasionally arises about such matters because of the indeterminate boundaries of what is required in
the common morality, what is or should be required in professional communities, and what is a matter of moral
character beyond the requirements of moral obligations. In many cases it is doubtful that health care
professionals fail to discharge moral obligations when they fall short of the highest standards in the profession.

MORAL EXCELLENCE

Aristotelian ethical theory closely connects moral excellence to moral character, moral virtues, and moral ideals.
Aristotle succinctly presents this idea: “A truly good and intelligent person … from his resources at any time
will do the finest actions he can, just as a good general will make the best use of his forces in war, and a good
shoemaker will produce the finest shoe he can from the hides given him, and similarly for all other craftsmen.”55

This passage captures the demanding nature of Aristotle’s theory by contrast to ethical theories that focus largely
or entirely on the moral minimum of obligations.

The value of this vision of excellence is highlighted by John Rawls, in conjunction with what he calls the
“Aristotelian principle”:

The excellences are a condition of human flourishing; they are goods from everyone’s point of view.
These facts relate them to the conditions of self-respect, and account for their connection with our
confidence in our own value. … [T]he virtues are [moral] excellences. … The lack of them will tend
to undermine both our self-esteem and the esteem that our associates have for us.56

We now draw on this general background in Aristotelian theory and on our prior analysis of moral ideals and
supererogation for an account of moral excellence.

The Idea of Moral Excellence

We begin with four considerations that motivate us to examine moral excellence. First, we hope to overcome an
undue imbalance in contemporary ethical theory and bioethics that results from focusing narrowly on the moral
minimum of obligations while ignoring supererogation and moral ideals.57 This concentration dilutes the moral
life, including our expectations for ourselves, our close associates, and health professionals. If we expect only
the moral minimum of obligation, we may lose an ennobling sense of moral excellence. A second and related
motivation is our hope to overcome a suppressed skepticism in contemporary ethical theory concerning high
ideals in the moral life. Some influential writers note that high moral ideals must compete with other goals and
responsibilities in life, and consequently that these ideals can lead persons to neglect other matters worthy of
attention, including personal projects, family relationships, friendships, and experiences that broaden outlooks.58

A third motivation concerns what we call in Chapter 9 the criterion of comprehensiveness in an ethical theory.
Recognizing the value of moral excellence allows us to incorporate a broad range of moral virtues and forms of
supererogation beyond the obligations, rights, and virtues that comprise ordinary morality. Fourth, a model of
moral excellence merits pursuit because it indicates what is worthy of aspiration. Morally exemplary lives
provide ideals that help guide and inspire us to higher goals and morally better lives.

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Aristotelian Ideals of Moral Character

Aristotle maintained that we acquire virtues much as we do skills such as carpentry, playing a musical
instrument, and cooking.59 Both moral and nonmoral skills require training and practice. Obligations play a less
central role in his account. Consider, for example, a person who undertakes to expose scientific fraud in an
academic institution. It is easy to frame this objective as a matter of obligation, especially if the institution has a
policy on fraud. However, suppose this person’s correct reports of fraud to superiors are ignored, and eventually
her job is in jeopardy and her family receives threats. At some point, she has fulfilled her obligations and is not
morally required to pursue the matter further. However, if she does persist, her continued pursuit would be
praiseworthy, and her efforts to bring about institutional reform could even reach heroic dimensions. Aristotelian
theory could and should frame this situation in terms of the person’s level of commitment, the perseverance and
endurance shown, the resourcefulness and discernment in marshalling evidence, and the courage as well as the
decency and diplomacy displayed in confronting superiors.

An analogy to education illustrates why setting goals beyond the moral minimum is important, especially when
discussing moral character. Most of us are trained to aspire to an ideal of education. We are taught to prepare
ourselves as best we can. No educational aspirations are too high unless they exceed our abilities and cannot be
attained. If we perform at a level below our educational potential, we may consider our achievement a matter of
disappointment and regret even if we obtain a university degree. As we fulfill our aspirations, we sometimes
expand our goals beyond what we had originally planned. We think of getting another degree, learning another
language, or reading widely beyond our specialized training. However, we do not say at this point that we have
an obligation to achieve at the highest possible level we can achieve.

The Aristotelian model suggests that moral character and moral achievement are functions of self-cultivation
and aspiration. Goals of moral excellence can and should enlarge as moral development progresses. Each
individual should seek to reach a level as elevated as his or her ability permits, not as a matter of obligation but
of aspiration. Just as persons vary in the quality of their performances in athletics and medical practice, so too in
the moral life some persons are more capable than others and deserve more acknowledgment, praise, and
admiration. Some persons are sufficiently advanced morally that they exceed what persons less well developed
are able to achieve.

Wherever a person is on the continuum of moral development, there will be a goal of excellence that exceeds
what he or she has already achieved. This potential to revise our aspirations is centrally important in the moral
life. Consider a clinical investigator who uses human subjects in research but who asks only, “What am I
obligated to do to protect human subjects?” This investigator’s presumption is that once this question has been
addressed by reference to a checklist of obligations (for example, government regulations), he or she can
ethically proceed with the research. By contrast, in the model we are proposing, this approach is only the starting
point. The most important question is, “How could I conduct this research to maximally protect and minimally
inconvenience subjects, commensurate with achieving the objectives of the research?” Evading this question
indicates that one is morally less committed than one could and probably should be.

The Aristotelian model we have sketched does not expect perfection, only that persons strive toward perfection.
This goal might seem impractical, but moral ideals truly can function as practical instruments. As our ideals,
they motivate us and set out a path that we can climb in stages, with a renewable sense of progress and
achievement.

Exceptional Moral Excellence: Saints, Heroes, and Others

Extraordinary persons often function as models of excellence whose examples we aspire to follow. Among the
many models, the moral hero and the moral saint are the most celebrated.

The term saint has a long history in religious traditions where a person is recognized for exceptional holiness,
but, like hero, the term saint has a secular moral use where a person is recognized for exceptional action or

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virtue. Excellence in other-directedness, altruism, and benevolence are prominent features of the moral saint.60

Saints do their duty and realize moral ideals where most people would fail to do so, and saintliness requires
regular fulfillment of duty and realization of ideals over time. It also demands consistency and constancy. We
likely cannot make an adequate or final judgment about a person’s moral saintliness until the record is complete.
By contrast, a person may become a moral hero through a single exceptional action, such as accepting
extraordinary risk while discharging duty or realizing ideals. The hero resists fear and the desire for self-
preservation in undertaking risky actions that most people would avoid, but the hero also may lack the constancy
over a lifetime that distinguishes the saint.

Many who serve as moral models or as persons from whom we draw moral inspiration are not so advanced
morally that they qualify as saints or heroes. We learn about good moral character from persons with a limited
repertoire of exceptional virtues, such as conscientious health professionals. Consider, for example, John
Berger’s biography of English physician John Sassall (the pseudonym Berger used for physician John Eskell),
who chose to practice medicine in a poverty-ridden, culturally deprived country village in a remote region of
northern England. Under the influence of works by Joseph Conrad, Sassall chose this village from an “ideal of
service” that reached beyond “the average petty life of self-seeking advancement.” Sassall was aware that he
would have almost no social life and that the villagers had few resources to pay him, to develop their
community, and to attract better medicine, but he focused on their needs rather than his. Progressively, Sassall
grew morally as he interacted with members of the community. He developed a deep understanding of, and
profound respect for, the villagers. He became a person of exceptional caring, devotion, discernment,
conscientiousness, and patience when taking care of the villagers. His moral character deepened year after year.
People in the community, in turn, trusted him under adverse and personally difficult circumstances.61

From exemplary lives such as that of John Sassall and from our previous analysis, we can extract four criteria of
moral excellence.62 First, Sassall is faithful to a worthy moral ideal that he keeps constantly before him in
making judgments and performing actions. The ideal is deeply devoted service to a poor and needy community.
Second, he has a motivational structure that conforms closely to our earlier description of the motivational
patterns of virtuous persons who are prepared to forgo certain advantages for themselves in the service of a
moral ideal. Third, he has an exceptional moral character; that is, he possesses moral virtues that dispose him to
perform supererogatory actions of a high order and quality.63 Fourth, he is a person of integrity—both moral
integrity and personal integrity—and thus is not overwhelmed by distracting conflicts, self-interest, or personal
projects in making judgments and performing actions.

These four conditions are jointly sufficient conditions of moral excellence. They are also relevant, but not
sufficient, conditions of both moral saintliness and moral heroism. John Sassall does not face extremely difficult
tasks, a high level of risk, or deep adversity (although he faces some adversity including his bi-polar condition),
and these are typically the sorts of conditions that contribute to making a person a saint or a hero. Exceptional as
he is, Sassall is neither a saint nor a hero. To achieve this elevated status, he would have to satisfy additional
conditions.

Much admired (though sometimes controversial) examples of moral saints acting from a diverse array of
religious commitments are Mahatma Gandhi, Florence Nightingale, Mother Teresa, the 14th Dalai Lama
(religious name: Tenzin Gyatso), and Albert Schweitzer. Many examples of moral saints are also found in
secular contexts where persons are dedicated to lives of service to the poor and downtrodden. Clear examples
are persons motivated to take exceptional risks to rescue strangers.64 Examples of prominent moral heroes
include soldiers, political prisoners, and ambassadors who take substantial risks to save endangered persons by
acts such as falling on hand grenades to spare comrades and resisting political tyrants.

Scientists and physicians who experiment on themselves to generate knowledge that may benefit others may be
heroes. There are many examples: Daniel Carrion injected blood into his arm from a patient with verruga
peruana (an unusual disease marked by many vascular eruptions of the skin and mucous membranes as well as
fever and severe rheumatic pains), only to discover that it had given him a fatal disease (Oroya fever). Werner
Forssman performed the first heart catheterization on himself, walking to the radiological room with the catheter

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sticking into his heart.65 Daniel Zagury injected himself with an experimental AIDS vaccine, maintaining that
his act was “the only ethical line of conduct.”66

A person can qualify as a moral hero or a moral saint only if he or she meets some combination of the previously
listed four conditions of moral excellence. It is too demanding to say that a person must satisfy all four
conditions to qualify as a moral hero, but a person must satisfy all four to qualify as a moral saint. This appraisal
does not imply that moral saints are more valued or more admirable than moral heroes. We are merely proposing
conditions of moral excellence that are more stringent for moral saints than for moral heroes.67

To pursue and test this analysis, consider two additional cases.68 First, reflect on physician David Hilfiker’s Not
All of Us Are Saints, which offers an instructive model of very exceptional but not quite saintly or heroic
conduct in his efforts to practice “poverty medicine” in Washington, DC.69 His decision to leave a rural medical
practice in the Midwest to provide medical care to the very poor, including the homeless, reflected both an
ambition and a felt obligation. Many health problems he encountered stemmed from an unjust social system, in
which his patients had limited access to health care and to other basic social goods that contribute to health. He
experienced severe frustration as he encountered major social and institutional barriers to providing poverty
medicine, and his patients were often difficult and uncooperative. His frustrations generated stress, depression,
and hopelessness, along with vacillating feelings and attitudes including anger, pain, impatience, and guilt.
Exhausted by his sense of endless needs and personal limitations, his wellspring of compassion failed to respond
one day as he thought it should: “Like those whom on another day I would criticize harshly, I harden myself to
the plight of a homeless man and leave him to the inconsistent mercies of the city police and ambulance system.
Numbness and cynicism, I suspect, are more often the products of frustrated compassion than of evil intentions.”

Hilfiker declared that he is “anything but a saint.” He considered the label “saint” to be inappropriate for people,
like himself, who have a safety net to protect them. Blaming himself for “selfishness,” he redoubled his efforts,
but recognized a “gap between who I am and who I would like to be,” and he considered that gap “too great to
overcome.” He abandoned “in frustration the attempt to be Mother Teresa,” observing that “there are few Mother
Teresas, few Dorothy Days who can give everything to the poor with a radiant joy.” Hilfiker did consider many
of the people with whom he worked day after day as heroes, in the sense that they “struggle against all odds and
survive; people who have been given less than nothing, yet find ways to give.”

Second, in What Really Matters: Living a Moral Life Amidst Uncertainty and Danger, psychiatrist and
anthropologist Arthur Kleinman presents half-a-dozen real-life stories about people who, as the book’s subtitle
suggests, attempt to live morally in the context of unpredictability and hazard.70 A story that provided the
impetus for his book portrays a woman he names Idi Bosquet-Remarque, a French American who for more than
fifteen years was a field representative for several different international aid agencies and foundations, mainly in
sub-Saharan Africa. Her humanitarian assistance, carried out almost anonymously, involved working with
vulnerable refugees and displaced women and children as well as with the various professionals, public officials,
and others who interacted with them. Kleinman presents her as a “moral exemplar,” who expressed “our finest
impulse to acknowledge the suffering of others and to devote our lives and careers to making a difference
(practically and ethically) in their lives, even if that difference must be limited and transient.”

At times Bosquet-Remarque was dismayed by various failures, including her own mistakes. She despaired about
the value of her work given the overwhelming odds against the people she sought to help, and she recognized
some truth in several criticisms of her humanitarian assistance. Faced with daunting obstacles, she persisted
because of her deep commitment but eventually experienced physical and emotional burnout, numbness, and
demoralization. Nevertheless, she returned to the field because of her deep commitment to her work. Bosquet-
Remarque recognized that her motives might be mixed. In addition to her altruism and compassion, she also
could have been working out family guilt or seeking to liberate her soul. Despite the ever-present risk of serious
injury and even death from violence, she was uncomfortable with the image of the humanitarian worker as
“hero.”

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After Bosquet-Remarque’s death in an automobile accident, Kleinman informed her family that he wanted to tell
her story. Her mother requested that her daughter not be identified by name: “That way, you will honor what she
believed in. Not saints or heroes, but ordinary nameless people doing what they feel they must do, even in
extraordinary situations. As a family, we believe in this too.”

These observations about ordinary persons who act in extraordinary ways are also relevant to what has been
called moral heroism in living organ and tissue donation—a topic to which we now turn.

Living Organ Donation

In light of our moral account thus far, how should we assess a person’s offer to donate a kidney to a friend or a
stranger?

Health care professionals frequently function as moral gatekeepers to determine who may undertake living
donation of organs and tissues for transplantation. Blood donation raises few questions, but in cases of bone
marrow donation and the donation of kidneys or portions of livers or lungs, health care professionals must
consider whether, when, and from whom to invite, encourage, accept, and effectuate donation. Living organ
donation raises challenging ethical issues because the transplant team subjects a healthy person to a variably
risky surgical procedure, with no medical benefit to him or her. It is therefore appropriate for transplant teams to
probe prospective donors’ competence to make such decisions and their understanding, voluntariness, and
motives.

Historically, transplant teams were suspicious of living, genetically unrelated donors—particularly of strangers
and mere acquaintances but, for a long time, even of emotionally related donors such as spouses and friends.
This suspicion had several sources, including concerns about donors’ motives and worries about their
competence to decide, understanding of the risks, and voluntariness in reaching their decisions. This suspicion
increased in cases of nondirected donation, that is, donation not to a particular known individual, but to anyone
in need. Such putatively altruistic decisions to donate seemed to require heightened scrutiny. However, in
contrast to some professionals’ attitudes,71 a majority of the public in the United States believes that the gift of a
kidney to a stranger is reasonable and proper and that, in general, the transplant team should accept it.72 A key
reason is that the offer to donate a kidney whether by a friend, an acquaintance, or a stranger typically does not
involve such high risks that serious questions should be triggered about the donor’s competence, understanding,
voluntariness, or motivation.73

Transplant teams can and should decline some heroic offers of organs for moral reasons, even when the donors
are competent, their decisions informed and voluntary, and their moral excellence beyond question. For instance,
transplant teams have good grounds to decline a mother’s offer to donate her heart to save her dying child,
because the donation would involve others in directly causing her death. A troublesome case arose when an
imprisoned, thirty-eight-year-old father who had already lost one of his kidneys wanted to donate his remaining
kidney to his sixteen-year-old daughter whose body had already rejected one kidney transplant.74 The family
insisted that medical professionals and ethics committees had no right to evaluate, let alone reject, the father’s
act of donation. However, questions arose about the voluntariness of the father’s offer (in part because he was in
prison), about the risks to him (many patients without kidneys do not thrive on dialysis), about the probable
success of the transplant (because of his daughter’s problems with her first transplant), and about the costs to the
prison system (approximately $40,000 to $50,000 a year for dialysis for the father if he donated the remaining
kidney).

We propose that society and health care professionals start with the presumption that living organ donation is
praiseworthy but optional. Transplant teams need to subject their criteria for selecting and accepting living
donors to public scrutiny to ensure that the teams do not inappropriately use their own values about sacrifice,
risk, and the like, as the basis for their judgments.75 Policies and practices of encouraging prospective living
donors are ethically acceptable as long as they do not turn into undue influence or coercion. For instance, it is
ethically acceptable to remove financial disincentives for potential donors, such as the costs of post-operative

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care, expenses associated with travel and accommodations, and the loss of wages while recovering from
donation. It is also ethically acceptable to provide a life insurance policy to reduce risks to the family of the
living donor.76 In the final analysis, live organ donors may not rise to the level of heroes, depending on the risks
involved, but many embody a moral excellence that merits society’s praise, as well as acceptance by transplant
teams in accord with defensible criteria. (In Chapter 9, in each major section, we analyze from several
perspectives the case of a father who is reluctant, at least partly because of a lack of courage, to donate a kidney
to his dying daughter.)

CONCLUSION

In this chapter we have moved to a moral territory distinct from the principles, rules, obligations, and rights
treated in Chapter 1. We have rendered the two domains consistent without assigning priority to one over the
other. We have discussed how standards of virtue and character are closely connected to other moral norms, in
particular to moral ideals and aspirations of moral excellence that enrich the rights, principles, and rules
discussed in Chapter 1. The one domain is not inferior to or derivative from the other, and there is reason to
believe that these categories all have a significant place in the common morality.

Still other domains of the moral life of great importance in biomedical ethics remain unaddressed. In Chapter 3
we turn to the chief domain not yet analyzed: moral status.

NOTES

1. 1. For relevant literature on the subjects discussed in Chapter 2 and in the last section of Chapter 9, see
Stephen Darwall, ed., Virtue Ethics (Oxford: Blackwell, 2003); Roger Crisp and Michael Slote, eds.,
Virtue Ethics (Oxford: Oxford University Press, 1997); Roger Crisp, ed., How Should One Live? Essays
on the Virtues (Oxford: Oxford University Press, 1996); and Daniel Statman, ed., Virtue Ethics: A Critical
Reader (Washington, DC: Georgetown University Press, 1997). Many constructive discussions of virtue
theory are indebted to Aristotle. For a range of treatments, see Julia Annas, Intelligent Virtue (New York:
Oxford University Press, 2011) and Annas, “Applying Virtue to Ethics,” Journal of Applied Philosophy 32
(2015): 1–14; Christine Swanton, Virtue Ethics: A Pluralistic View (New York: Oxford University Press,
2003); Nancy Sherman, The Fabric of Character: Aristotle’s Theory of Virtue (Oxford: Clarendon Press,
1989); Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed. (Notre Dame, IN: University of
Notre Dame Press, 2007) and MacIntyre, Dependent Rational Animals: Why Human Beings Need the
Virtues (Chicago: Open Court, 1999); Timothy Chappell, ed., Values and Virtues: Aristotelianism in
Contemporary Ethics (Oxford: Clarendon Press, 2006); and Robert Merrihew Adams, A Theory of Virtue:
Excellence in Being for the Good (Oxford: Clarendon Press, 2006), and Adams, “A Theory of Virtue:
Response to Critics,” Philosophical Studies 148 (2010): 159–65.

2. 2. Jeremy Bentham, Deontology or the Science of Morality (Chestnut Hill, MA: Adamant Media, 2005;
reprinted in the Elibron Classics Series of the 1834 edition, originally published in London by Longman et
al., 1834), p. 196.

3. 3. This sense of “virtue” is intentionally broad. We do not require, as did Aristotle, that virtue involve
habituation rather than a natural character trait. See Nicomachean Ethics, trans. Terence Irwin
(Indianapolis, IN: Hackett, 1985), 1103a18–19. Nor do we follow St. Thomas Aquinas (relying on a
formulation by Peter Lombard), who additionally held that virtue is a good quality of mind by which we
live rightly and therefore cannot be put to bad use. See Treatise on the Virtues (from Summa Theologiae,
I–II), Question 55, Arts. 3–4. We treat problems of the definition of “virtue” in more detail in Chapter 9.

4. 4. This definition is the primary use reported in the Oxford English Dictionary (OED). It is defended
philosophically by Alan Gewirth, “Rights and Virtues,” Review of Metaphysics 38 (1985): 751; and
Richard B. Brandt, “The Structure of Virtue,” Midwest Studies in Philosophy 13 (1988): 76. See also the
consequentialist account in Julia Driver, Uneasy Virtue (Cambridge: Cambridge University Press, 2001),
esp. chap. 4, and Driver, “Response to my Critics,” Utilitas 16 (2004): 33–41. Edmund Pincoffs presents a
definition of virtue in terms of desirable dispositional qualities of persons, in Quandaries and Virtues:

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Against Reductivism in Ethics (Lawrence: University Press of Kansas, 1986), pp. 9, 73–100. See also
MacIntyre, After Virtue, chaps. 10–18; and Raanan Gillon, “Ethics Needs Principles,” Journal of Medical
Ethics 29 (2003): 307–12, esp. 309.

5. 5. See the pursuit of this Aristotelian theme in Annas, Intelligent Virtue, chap. 5. Elizabeth Anscombe’s
“Modern Moral Philosophy” (Philosophy 33 [1958]: 1–19) is the classic mid-twentieth-century paper on
the importance for ethics of categories such as character, virtue, the emotions, and Aristotelian ethics, by
contrast to moral theories based on moral law, duty, and principles of obligation.

6. 6. This analysis of practices is influenced by Alasdair MacIntyre, After Virtue, esp. chap. 14; and Dorothy
Emmet, Rules, Roles, and Relations (New York: St. Martin’s, 1966). See also Justin Oakley and Dean
Cocking, Virtue Ethics and Professional Roles (Cambridge: Cambridge University Press, 2001); Oakley,
“Virtue Ethics and Bioethics,” in The Cambridge Companion to Virtue Ethics, ed. Daniel C. Russell
(Cambridge: Cambridge University Press, 2013), pp. 197–220; and Tom L. Beauchamp, “Virtue Ethics
and Conflict of Interest,” in The Future of Bioethics: International Dialogues, ed. Akira Akabayashi
(Oxford: Oxford University Press, 2014), pp. 688–92.

7. 7. A somewhat similar thesis is defended, in dissimilar ways, in Edmund D. Pellegrino, “Toward a Virtue-
Based Normative Ethics for the Health Professions,” Kennedy Institute Ethics Journal 5 (1995): 253–77.
See also John Cottingham, “Medicine, Virtues and Consequences,” in Human Lives: Critical Essays on
Consequentialist Bioethics, ed. David S. Oderberg (New York: Macmillan, 1997); Alan E. Armstrong,
Nursing Ethics: A Virtue-Based Approach (New York: Palgrave Macmillan, 2007); and Jennifer Radden
and John Z. Sadler, The Virtuous Psychiatrist: Character Ethics in Psychiatric Practice (New York:
Oxford University Press, 2010).

8. 8. Charles L. Bosk, Forgive and Remember: Managing Medical Failure, 2nd ed. (Chicago: University of
Chicago Press, 2003). In addition to the three types of error we mention, Bosk recognizes a fourth type:
“quasi-normative errors,” based on the attending’s special protocols. In the Preface to the second edition,
he notes that his original book did not stress as much as it should have the problems that were created
when normative and quasi-normative breaches were treated in a unitary fashion (p. xxi).

9. 9. Thomas Percival, Medical Ethics; or a Code of Institutes and Precepts, Adapted to the Professional
Conduct of Physicians and Surgeons (Manchester, UK: S. Russell, 1803), pp. 165–66. This book formed
the substantive basis of the first American Medical Association code in 1847.

10. 10. For this shift, see Gerald R. Winslow, “From Loyalty to Advocacy: A New Metaphor for Nursing,”
Hastings Center Report 14 (June 1984): 32–40; and Helga Kuhse, Caring: Nurses, Women and Ethics
(Oxford, UK: Blackwell, 1997), esp. chaps. 1, 2, and 9.

11. 11. See the virtue-based approach to nursing ethics in Armstrong, Nursing Ethics: A Virtue-Based
Approach.

12. 12. Contrast Virginia Held’s argument for a sharp distinction between the ethics of care and virtue ethics
on the grounds that the former focuses on relationships and the latter on individuals’ dispositions: The
Ethics of Care: Personal, Political, and Global (New York: Oxford University Press, 2006). We are
skeptical of her argument, and of the similar view developed by Nel Noddings in “Care Ethics and Virtue
Ethics,” in The Routledge Companion to Virtue Ethics, ed., Lorraine Besser-Jones and Michael Slote
(London: Routledge, 2015), pp. 401–14. Drawing on related themes, Ruth Groenhout challenges the
standard taxonomies that lump a feminist ethic of care together with virtue ethics (developed from a
nonfeminist history); see her “Virtue and a Feminist Ethic of Care,” in Virtues and Their Vices, ed. Kevin
Timpe and Craig A. Boyd (Oxford: Oxford University Press, 2014), pp. 481–501. For an argument closer
to ours, see Raja Halwani, “Care Ethics and Virtue Ethics,” Hypatia 18 (2003): 161–92.

13. 13. Carol Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982), esp. p. 21. See
also her “Mapping the Moral Domain: New Images of Self in Relationship,” Cross Currents 39 (Spring
1989): 50–63.

14. 14. Gilligan and others deny that the two distinct voices correlate strictly with gender. See Gilligan and
Susan Pollak, “The Vulnerable and Invulnerable Physician,” in Mapping the Moral Domain, ed. C.
Gilligan, J. Ward, and J. Taylor (Cambridge, MA: Harvard University Press, 1988), pp. 245–62.

15. 15. See Gilligan and G. Wiggins, “The Origins of Morality in Early Childhood Relationships,” in The
Emergence of Morality in Young Children, ed. J. Kagan and S. Lamm (Chicago: University of Chicago
Press, 1988). See also Margaret Olivia Little, “Care: From Theory to Orientation and Back,” Journal of
Medicine and Philosophy 23 (1998): 190–209.

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16. 16. Our formulation of these criticisms is influenced by Alisa L. Carse, “The ‘Voice of Care’: Implications
for Bioethical Education,” Journal of Medicine and Philosophy 16 (1991): 5–28, esp. 8–17. For
assessment of such criticisms, see Abraham Rudnick, “A Meta-Ethical Critique of Care Ethics,”
Theoretical Medicine 22 (2001): 505–17.

17. 17. Alisa L. Carse, “Impartial Principle and Moral Context: Securing a Place for the Particular in Ethical
Theory,” Journal of Medicine and Philosophy 23 (1998): 153–69.

18. 18. See Christine Grady and Anthony S. Fauci, “The Role of the Virtuous Investigator in Protecting
Human Research Subjects,” Perspectives in Biology and Medicine 59 (2016): 122–31; Nel Noddings,
Caring: A Feminine Approach to Ethics and Moral Education, 2nd ed. (Berkeley: University of California
Press, 2003), and the evaluation of Noddings’s work in Halwani, “Care Ethics and Virtue Ethics,” esp. pp.
162ff.

19. 19. See Nancy Sherman, The Fabric of Character, pp. 13–55; and Martha Nussbaum, Love’s Knowledge
(Oxford: Oxford University Press, 1990). On “attention” in medical care, see Margaret E. Mohrmann,
Attending Children: A Doctor’s Education (Washington, DC: Georgetown University Press, 2005).

20. 20. Carse, “The ‘Voice of Care,’” p. 17.
21. 21. Other virtues are similarly important. We treat several later in this chapter and in Chapter 9. On the

historical role of a somewhat different collection of central virtues in medical ethics and their connection
to vices, especially since the eighteenth century, see Frank A. Chervenak and Laurence B. McCullough,
“The Moral Foundation of Medical Leadership: The Professional Virtues of the Physician as Fiduciary of
the Patient,” American Journal of Obstetrics and Gynecology 184 (2001): 875–80.

22. 22. Edmund D. Pellegrino, “Toward a Virtue-Based Normative Ethics,” p. 269. Compassion is often
regarded as one of the major marks of an exemplary health care professional. See Helen Meldrum,
Characteristics of Compassion: Portraits of Exemplary Physicians (Sudbury, MA; Jones and Bartlett,
2010).

23. 23. See Lawrence Blum, “Compassion,” in Explaining Emotions, ed. Amélie Oksenberg Rorty (Berkeley:
University of California Press, 1980); and David Hume, A Dissertation on the Passions, ed. Tom L.
Beauchamp (Oxford: Clarendon Press, 2007), Sect. 3, §§ 4–5.

24. 24. Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge
University Press, 2001), p. 302. Part II of this book is devoted to compassion.

25. 25. See Jodi Halpern, From Detached Concern to Empathy: Humanizing Medical Practice (New York:
Oxford University Press, 2001). For a variety of largely positive essays on empathy, see Howard Spiro et
al., eds., Empathy and the Practice of Medicine (New Haven, CT: Yale University Press, 1993); and Ellen
Singer More and Maureen A. Milligan, eds., The Empathic Practitioner: Empathy, Gender, and Medicine
(New Brunswick, NJ: Rutgers University Press, 1994). A valuable set of philosophical and psychological
perspectives on empathy appears in Amy Coplan and Peter Goldie, eds., Empathy: Philosophical and
Psychological Perspectives (Oxford: Oxford University Press, 2011). Jean Decety, ed., Empathy: From
Bench to Bedside (Cambridge, MA: MIT Press, 2012) includes several essays in Part VI on “Empathy in
Clinical Practice.” For dangers of an overemphasis on empathy in medicine, see Jane Mcnaughton, “The
Art of Medicine: The Dangerous Practice of Empathy,” Lancet 373 (2009): 1940–1941. Paul Bloom offers
a sustained psychological argument against empathy in favor of “rational compassion” in health care, and
many other areas, in his Against Empathy: The Case for Rational Compassion (New York: Ecco Press of
HarperCollins, 2016). Some commentators on his thesis recognize the legitimacy of his concerns, for
instance, about empathy in health care, but call for a more nuanced perspective and greater appreciation of
the value of empathy. See the discussion in response to his essay entitled “Against Empathy” in a Forum
in the Boston Review, September 10, 2014, available at http://bostonreview.net/forum/paul-bloom-against-
empathy (accessed July 22, 2018). Much in this debate hinges on different interpretations of the concept,
criteria, and descriptions of empathy.

26. 26. David Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary Norton (Oxford:
Clarendon Press, 2007), 3.3.1.7.

27. 27. Baruch Brody, “Case No. 25. ‘Who Is the Patient, Anyway’: The Difficulties of Compassion,” in Life
and Death Decision Making (New York: Oxford University Press, 1988), pp. 185–88.

28. 28. Aristotle, Nicomachean Ethics, trans. Terence Irwin, 2nd ed. (Indianapolis: Hackett, 2000), 1106b15–
29, 1141a15–1144b17.

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29. 29. Annette Baier, “Trust, Suffering, and the Aesculapian Virtues,” in Working Virtue: Virtue Ethics and
Contemporary Moral Problems, ed. Rebecca L. Walker and Philip J. Ivanhoe (Oxford: Clarendon Press,
2007), p. 137.

30. 30. See Annette Baier’s “Trust and Antitrust” and two later essays on trust in her Moral Prejudices
(Cambridge, MA: Harvard University Press, 1994); Nancy N. Potter, How Can I Be Trusted: A Virtue
Theory of Trustworthiness (Lanham, MD: Rowman & Littlefield, 2002); Philip Pettit, “The Cunning of
Trust,” Philosophy & Public Affairs 24 (1995): 202–25; and Pellegrino and Thomasma, The Virtues in
Medical Practice, chap. 5.

31. 31. Aristotle, Eudemian Ethics, 1242b23–1243a13, in The Complete Works of Aristotle, ed. Jonathan
Barnes (Princeton, NJ: Princeton University Press, 1984).

32. 32. For discussions of the erosion of trust in medicine, see Robert J. Blendon, John M. Benson, and
Joachim O. Hero, “Public Trust in Physicians—U.S. Medicine in International Perspective” (a project
studying 29 industrialized countries sponsored by the Robert Wood Johnson Foundation), New England
Journal of Medicine 371 (2014): 1570–72; David A. Axelrod and Susan Dorr Goold, “Maintaining Trust
in the Surgeon-Patient Relationship: Challenges for the New Millennium,” Archives of Surgery 135
(January 2000), available at https://jamanetwork.com/journals/jamasurgery/fullarticle/390488 (accessed
March 17, 2018); David Mechanic, “Public Trust and Initiatives for New Health Care Partnerships,”
Milbank Quarterly 76 (1998): 281–302; Pellegrino and Thomasma in The Virtues in Medical Practice, pp.
71–77; and Mark A. Hall, “The Ethics and Empirics of Trust,” in The Ethics of Managed Care:
Professional Integrity and Patient Rights, ed. W. B. Bondeson and J. W. Jones (Dordrecht, Netherlands:
Kluwer, 2002), pp. 109–26. Broader explorations of trustworthiness, trust, and distrust appear in Russell
Hardin’s Trust and Trustworthiness, Russell Sage Foundation Series on Trust, vol. 4 (New York: Russell
Sage Foundation Publications, 2004). See further Onora O’Neill’s proposals to restore trust in medical and
other contexts where mistrust results from factors such as bureaucratic structures of accountability,
excessive transparency, and public culture: A Question of Trust (Cambridge: Cambridge University Press,
2002) and Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press, 2003).

33. 33. Brody, Life and Death Decision Making, p. 35. On the interpretation of integrity as a virtue, see
Damian Cox, Marguerite La Caze, and Michael Levine, “Integrity,” The Stanford Encyclopedia of
Philosophy (Spring 2017 Edition), ed. Edward N. Zalta, available at
https://plato.stanford.edu/archives/spr2017/entries/integrity/ (accessed March 27, 2018).

34. 34. On the connection of, and the distinction between, autonomy and integrity, see Carolyn McLeod,
“How to Distinguish Autonomy from Integrity,” Canadian Journal of Philosophy 35 (2005): 107–33.

35. 35. On integrity as a virtue in the medical professions, see Edmund D. Pellegrino, “Codes, Virtue, and
Professionalism,” in Methods of Medical Ethics, ed. Jeremy Sugarman and Daniel P. Sulmasy, revised 2nd
ed. (Washington, DC: Georgetown University Press, 2010), pp. 91–107, esp. 94; and Michael Wreen,
“Medical Futility and Physician Discretion,” Journal of Medical Ethics 30 (2004): 275–78.

36. 36. For useful discussions of this question in nursing, see Martin Benjamin and Joy Curtis, Ethics in
Nursing: Cases, Principles, and Reasoning, 4th ed. (New York: Oxford University Press, 2010), pp. 122–
26; and Betty J. Winslow and Gerald Winslow, “Integrity and Compromise in Nursing Ethics,” Journal of
Medicine and Philosophy 16 (1991): 307–23. A wide-ranging discussion is found in Martin Benjamin,
Splitting the Difference: Compromise and Integrity in Ethics and Politics (Lawrence: University Press of
Kansas, 1990).

37. 37. For a historically grounded critique of such conceptions and a defense of conscience as a virtue, see
Douglas C. Langston, Conscience and Other Virtues: From Bonaventure to MacIntyre (University Park:
Pennsylvania State University Press, 2001). For another historical perspective, see Richard Sorabji, Moral
Conscience Through the Ages: Fifth Century BCE to the Present (Chicago: University of Chicago Press,
2014).

38. 38. Bernard Williams, “A Critique of Utilitarianism,” in J. J. C. Smart and Williams, Utilitarianism: For
and Against (Cambridge: Cambridge University Press, 1973), pp. 97–98.

39. 39. We here draw from two sources: Hannah Arendt, Crises of the Republic (New York: Harcourt, Brace,
Jovanovich, 1972), p. 62; and John Stuart Mill, Utilitarianism, chap. 3, pp. 228–29, and On Liberty, chap.
3, p. 263, in Collected Works of John Stuart Mill, vols. 10, 18 (Toronto, Canada: University of Toronto
Press, 1969, 1977).

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40. 40. Carl H. Fellner, “Organ Donation: For Whose Sake?” Annals of Internal Medicine 79 (October 1973):
591.

41. 41. See James F. Childress, “Appeals to Conscience,” Ethics 89 (1979): 315–35; Larry May, “On
Conscience,” American Philosophical Quarterly 20 (1983): 57–67; and C. D. Broad, “Conscience and
Conscientious Action,” in Moral Concepts, ed. Joel Feinberg (Oxford: Oxford University Press, 1970), pp.
74–79. See also Daniel P. Sulmasy, “What Is Conscience and Why Is Respect for It So Important?”
Theoretical Medicine and Bioethics 29 (2008): 135–49; and Damian Cox, Marguerite La Caze, and
Michael Levine, “Integrity,” The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), ed. Edward
N. Zalta, available at https://plato.stanford.edu/archives/spr2017/entries/integrity/ (accessed February 25,
2018).

42. 42. Douglas B. White and Baruch Brody, “Would Accommodating Some Conscientious Objections by
Physicians Promote Quality in Medical Care?” JAMA 305 (May 4, 2011): 1804–5.

43. 43. For several models, see Rebecca Dresser, “Professionals, Conformity, and Conscience,” Hastings
Center Report 35 (November–December 2005): 9–10; Mark R. Wicclair, Conscientious Objection in
Health Care: An Ethical Analysis (Cambridge: Cambridge University Press, 2011); Alta R. Charo, “The
Celestial Fire of Conscience—Refusing to Deliver Medical Care,” New England Journal of Medicine 352
(2005): 2471–73; and Elizabeth Fenton and Loren Lomasky, “Dispensing with Liberty: Conscientious
Refusal and the ‘Morning-After Pill,’” Journal of Medicine and Philosophy 30 (2005): 579–92.

44. 44. See Holly Fernandez Lynch, Conflicts of Conscience: An Institutional Compromise (Cambridge, MA:
MIT Press, 2008).

45. 45. The rest of the physicians are opposed or undecided. Farr A. Curlin et al., “Religion, Conscience, and
Controversial Clinical Practices,” New England Journal of Medicine 356 (February 8, 2007): 593–600.

46. 46. Dan W. Brock offers a similar framework for ethical analysis in what he calls the “conventional
compromise” in “Conscientious Refusal by Physicians and Pharmacists: Who Is Obligated to Do What,
and Why?” Theoretical Medicine and Bioethics 29 (2008): 187–200. For the legal framework in the
United States, see Elizabeth Sepper, “Conscientious Refusals of Care,” in The Oxford Handbook of U.S.
Health Law, ed. I. Glenn Cohen, Allison Hoffman, and William M. Sage (New York: Oxford University
Press, 2017), chap. 16.

47. 47. Our analysis is indebted to David Heyd, Supererogation: Its Status in Ethical Theory (Cambridge:
Cambridge University Press, 1982); Heyd, “Tact: Sense, Sensitivity, and Virtue,” Inquiry 38 (1995): 217–
31; Heyd, “Obligation and Supererogation,” Encyclopedia of Bioethics, 3rd ed. (New York: Thomson
Gale, 2004), vol. 4, pp. 1915–20; and Heyd, “Supererogation,” The Stanford Encyclopedia of Philosophy
(Spring 2016 Edition), ed. Edward N. Zalta, available at
https://plato.stanford.edu/archives/spr2016/entries/supererogation (accessed March 27, 2018). We are also
indebted to J. O. Urmson, “Saints and Heroes,” Essays in Moral Philosophy, ed. A. I. Melden (Seattle:
University of Washington Press, 1958), pp. 198–216; John Rawls, A Theory of Justice (Cambridge, MA:
Harvard University Press, 1971; rev. ed. 1999), pp. 116–17, 438–39, 479–85 (1999: 100–101, 385–86,
420–25); Joel Feinberg, “Supererogation and Rules,” Ethics 71 (1961); and Gregory Mellema, Beyond the
Call of Duty: Supererogation, Obligation, and Offence (Albany: State University of New York Press,
1991). For central connections between virtue and supererogation, see Roger Crisp, “Supererogation and
Virtue,” in Oxford Studies in Normative Ethics (vol. 3), ed. Mark Timmons (Oxford: Oxford University
Press, 2013), article 1.

48. 48. Albert Camus, The Plague, trans. Stuart Gilbert (New York: Knopf, 1988), p. 278. Italics added.
49. 49. The formulation in this sentence relies in part on Rawls, A Theory of Justice, p. 117 (1999 edition, p.

100).
50. 50. Feinberg, “Supererogation and Rules,” 397.
51. 51. See Dena Hsin-Chen and Darryl Macer, “Heroes of SARS: Professional Roles and Ethics of Health

Care Workers,” Journal of Infection 49 (2004): 210–15; Joseph J. Fins, “Distinguishing Professionalism
and Heroism When Disaster Strikes: Reflections on 9/11, Ebola, and Other Emergencies,” Cambridge
Quarterly of Healthcare Ethics 24 (October 2015): 373–84; Angus Dawson, “Professional, Civic, and
Personal Obligations in Public Health Emergency Planning and Response,” in Emergency Ethics: Public
Health Preparedness and Response, ed. Bruce Jennings, John D. Arras, Drue H. Barrett, and Barbara A.
Ellis (New York: Oxford University Press, 2016), pp. 186–219. Early discussions of HIV/AIDS, when
there were major concerns about transmission in the clinical setting, frequently addressed the clinician’s

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responsibility to treat. Examples include Bernard Lo, “Obligations to Care for Persons with Human
Immunodeficiency Virus,” Issues in Law & Medicine 4 (1988): 367–81; Doran Smolkin, “HIV Infection,
Risk Taking, and the Duty to Treat,” Journal of Medicine and Philosophy 22 (1997): 55–74; and John
Arras, “The Fragile Web of Responsibility: AIDS and the Duty to Treat,” Hastings Center Report 18
(April–May 1988): S10–20.

52. 52. American Medical Association (AMA), Code of Medical Ethics of the American Medical Association,
adopted May 1847 (Philadelphia: T.K. and P.G. Collins, 1848), available at
http://ethics.iit.edu/ecodes/sites/default/files/Americaan%20Medical%20Association%20Code%20of%20
Medical%20Ethics%20%281847%29.pdf (accessed March 17, 2018).

53. 53. See American Medical Association, Council on Ethical and Judicial Affairs, “Ethical Issues Involved
in the Growing AIDS Crisis,” Journal of the American Medical Association 259 (March 4, 1988): 1360–
61.

54. 54. Health and Public Policy Committee, American College of Physicians and Infectious Diseases Society
of America, “The Acquired Immunodeficiency Syndrome (AIDS) and Infection with the Human
Immunodeficiency Virus (HIV),” Annals of Internal Medicine 108 (1988): 460–61. See further Edmund
D. Pellegrino, “Character, Virtue, and Self-Interest in the Ethics of the Professions,” Journal of
Contemporary Health Law and Policy 5 (1989): 53–73, esp. 70–71.

55. 55. Aristotle, Nicomachean Ethics, trans. Irwin, 1101a1–7.
56. 56. Rawls, A Theory of Justice, pp. 443–45 (1999 edition: 389–91). On the Aristotelian principle, see pp.

424–33 (1999 edition: 372–80).
57. 57. Urmson recognized this problem in “Saints and Heroes,” pp. 206, 214. Imbalance is found in forms of

utilitarianism that make strong demands of obligation. However, see the attempt to revise
consequentialism to bring it in line with common moral intuitions in Douglas W. Portman, “Position-
Relative Consequentialism, Agent-Centered Options, and Supererogation,” Ethics 113 (2003): 303–32.

58. 58. A reasonable skepticism is evident in some influential philosophical works such as those of Susan
Wolf (in the article cited below), Philippa Foot, Bernard Williams, and Thomas Nagel.

59. 59. Aristotle, Nicomachean Ethics, trans. Irwin, 1103a32–1103b1.
60. 60. Edith Wyschogrod offers a definition of a “saintly life” as “one in which compassion for the other,

irrespective of cost to the saint, is the primary trait.” Wyschogrod, Saints and Postmodernism: Revisioning
Moral Philosophy (Chicago: University of Chicago Press, 1990), pp. xiii, xxii, et passim.

61. 61. John Berger (and Jean Mohr, photographer), A Fortunate Man: The Story of a Country Doctor
(London: Allen Lane, the Penguin Press, 1967), esp. pp. 48, 74, 82ff, 93ff, 123–25, 135. Lawrence Blum
pointed us to this book and influenced our perspective on it. Sassall’s wife played a critical role in running
his medical practice and helping him deal with his manic-depressive illness; she receives little attention in
the book, which is, however, dedicated to her. She died in 1981, and he committed suicide the next year.
See Roger Jones, “Review: A Fortunate Man,” British Journal of General Practice, February 9, 2015,
available at http://bjgplife.com/2015/02/09/review-a-fortunate-man/ (accessed July 20, 2018). See also
Gavin Francis, “John Berger’s A Fortunate Man: A Masterpiece of Witness,” Guardian, February 7, 2015,
available at https://www.theguardian.com/books/2015/feb/07/john-sassall-country-doctor-a-fortunate-
man-john-berger-jean-mohr (accessed, July 20, 2018).

62. 62. Our conditions of moral excellence are indebted to Lawrence Blum, “Moral Exemplars,” Midwest
Studies in Philosophy 13 (1988): 204. See also Blum’s “Community and Virtue,” in How Should One
Live?: Essays on the Virtues, ed. Crisp.

63. 63. Our second and third conditions are influenced by the characterization of a saint in Susan Wolf’s
“Moral Saints,” Journal of Philosophy 79 (1982): 419–39. For a pertinent critique of Wolf’s interpretation,
see Robert Merrihew Adams, “Saints,” Journal of Philosophy 81 (1984), reprinted in Adams, The Virtue
of Faith and Other Essays in Philosophical Theology (New York: Oxford University Press, 1987), pp.
164–73.

64. 64. For an examination of some twenty-first-century figures who lived under extreme conditions with
exceptional moral commitment, see Larissa MacFarquhar, Strangers Drowning: Impossible Idealism,
Drastic Choices, and the Urge to Help (New York: Penguin Books, 2016).

65. 65. Jay Katz, ed., Experimentation with Human Beings (New York: Russell Sage Foundation, 1972), pp.
136–40; Lawrence K. Altman, Who Goes First? The Story of Self-Experimentation in Medicine, 2nd ed.,
with a new preface (Berkeley: University of California Press, 1998), pp. 1–5, 39–50, et passim.

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66. 66. Philip J. Hilts, “French Doctor Testing AIDS Vaccine on Self,” Washington Post, March 10, 1987, p.
A7; Altman, Who Goes First?, pp. 26–28.

67. 67. We will not consider whether these conditions point to a still higher form of moral excellence: the
combination of saint and hero in one person. There have been such extraordinary persons, and we could
make a case that some of these extraordinary figures are more excellent than others. But at this level of
moral exemplariness, such fine distinctions serve no purpose.

68. 68. These cases can be read as suggesting that many people who are commonly called heroes or saints are
not very different from good and decent but morally ordinary people. This theory is not explored here
(except implicitly in our account of the continuum from ordinary morality to supererogation), but it is
examined in Andrew Michael Flescher, Heroes, Saints, and Ordinary Morality (Washington: Georgetown
University Press, 2003). Flescher provides historical examples of people commonly regarded as saints or
heroes.

69. 69. David Hilfiker, Not All of Us Are Saints: A Doctor’s Journey with the Poor (New York: Hill & Wang,
1994). The summaries and quotations that follow come from this book. His earlier book, Healing the
Wounds: A Physician Looks at His Work (New York: Pantheon, 1985) focuses on his previous experiences
as a family physician in rural Minnesota. The personal problems he (and some others we discuss) faced
underline a critical point in this chapter: difficulties that can arise in balancing a commitment to a moral
ideal or moral excellence with personal needs.

70. 70. Arthur Kleinman, What Really Matters: Living a Moral Life Amidst Uncertainty and Danger (New
York: Oxford University Press, 2006), chap. 3. The quotations are from this work.

71. 71. For the attitudes of nephrologists, transplant nephrologists, transplant surgeons, and the like, see Carol
L. Beasley, Alan R. Hull, and J. Thomas Rosenthal, “Living Kidney Donation: A Survey of Professional
Attitudes and Practices,” American Journal of Kidney Diseases 30 (October 1997): 549–57; and Reginald
Y. Gohh, Paul E. Morrissey, Peter N. Madras, et al., “Controversies in Organ Donation: The Altruistic
Living Donor,” Nephrology Dialysis Transplantation 16 (2001): 619–21, available at
https://academic.oup.com/ndt/article/16/3/619/1823109 (accessed February 26, 2018). Even though strong
support now exists for living kidney donation, actual medical practice is not uniformly in agreement.

72. 72. See Aaron Spital and Max Spital, “Living Kidney Donation: Attitudes Outside the Transplant Center,”
Archives of Internal Medicine 148 (May 1988): 1077–80; Aaron Spital, “Public Attitudes toward Kidney
Donation by Friends and Altruistic Strangers in the United States,” Transplantation 71 (2001): 1061–64.

73. 73. From 1996 to 2005, as living kidney donation overall doubled in the United States, the annual
percentage of genetically unrelated kidney donors (excluding spouses) rose from 5.9% to 22%. 2006
Annual Report of the U.S. Organ Procurement and Transplantation Network and the Scientific Registry of
Transplant Recipients: Transplant Data 1996–2005 (Rockville, MD: Health Resources and Services
Administration, Healthcare Systems Bureau, Division of Transplantation, 2006). During the years 2001–3,
acts of living organ donation outnumbered acts of deceased organ donation, but living organ donation,
which had increased for the preceding five years, declined steadily after 2004 for both kidneys and livers.
See A. S. Klein, E. E. Messersmith, L. E. Ratner, et al., “Organ Donation and Utilization in the United
States, 1999–2008,” American Journal of Transplantation 10 (Part 2) (2010): 973–86. This slide has
continued. See James R. Rodrigue, Jesse D. Schold, and Didier A. Mandelbrot, “The Decline in Living
Kidney Donation in the United States: Random Variation or Cause for Concern?” Transplantation 96
(2013): 767–73.

74. 74. Evelyn Nieves, “Girl Awaits Father’s 2nd Kidney, and Decision by Medical Ethicists,” New York
Times, December 5, 1999, pp. A1, A11.

75. 75. See Linda Wright, Karen Faith, Robert Richardson, and David Grant, “Ethical Guidelines for the
Evaluation of Living Organ Donors,” Canadian Journal of Surgery 47 (December 2004): 408–12. See
also A. Tong, J. R. Chapman, G. Wong, et al., “Living Kidney Donor Assessment: Challenges,
Uncertainties and Controversies among Transplant Nephrologists and Surgeons,” American Journal of
Transplantation 13 (2013): 2912–23. For further examination of ethical issues in living organ donation,
see James F. Childress and Cathryn T. Liverman, eds., Organ Donation: Opportunities for Action
(Washington, DC: National Academies Press, 2006), chap. 9.

76. 76. A vigorous debate continues about whether it would be ethically acceptable to add financial incentives
for living organ donation, beyond removing financial disincentives. Such incentives would change some
donors’ motivations for donation, which already may include factors in addition to their altruism.

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3

Moral Status

The previous two chapters concentrated on moral agents and their obligations, rights, and virtues. Little
consideration has been given to whom the obligations are owed, why we have obligations to some beings and
not others, and which beings have rights and which do not. This chapter is devoted to these questions of moral
status, also referred to as moral standing and moral considerability.1

The terms status and standing have been transported to ethics from the notion of legal standing. In a weak sense,
“moral status” refers to a position, grade, or rank of moral importance. In a strong sense, “moral status” means to
have rights or the functional equivalent of rights. Any being has moral status if moral agents have moral
obligations to it, the being has welfare interests, and the moral obligations owed to it are based on its interests.2

THE PROBLEM OF MORAL STATUS

The problem of moral status begins with questions about which entities, individuals, and groups are protected by
moral norms. For example, what should we say about human embryonic stem cells? Human eggs? Embryos?
Fetuses? Newborn infants? Anencephalic babies? The mentally disabled? Persons who are unable to distinguish
right from wrong? The seriously demented? Those incurring a permanent loss of consciousness? The brain-
dead? Cadavers? Nonhuman animals used in medical research? A biologically modified animal designed to
carry a human fetus to term? Chimeric animals, transgenic animals, and other new life forms created in
research? Do the members of each of these groups deserve moral protections or have moral rights? If so, do they
deserve the same complement of protections and rights afforded to competent adult humans?3

Throughout much of human history, collections of human beings such as racial groupings, tribes, enemies in
war, and effectively all nonhuman animals have been treated as less than persons. Accordingly, they were
assigned either no moral status or a low-level of moral status and were accorded no moral rights (historically,
slaves in many societies) or fewer or weaker rights (historically, women in many societies).4 Still common,
though controversial, presumptions in medicine and biomedical ethics indicate that some groups have no moral
rights (e.g., animals used in biomedical research) and that some groups have fewer or weaker rights (e.g., human
embryos used in research).

Surrogate decision making also raises questions about moral status. When a once competent person is deemed
incompetent and needs a surrogate decision maker, the person does not lose all moral protections and forms of
moral respect. Many obligations to these individuals continue, and some new obligations may arise.
Nonetheless, the recognition of a surrogate as the rightful decision maker entails that the incompetent individual
has lost some rights of decision making, and in this respect the individual’s moral status is lower than it
previously was. Any “decision” that such an individual might make (e.g., to leave a nursing home) does not have
the same moral authority it had prior to the determination of incompetency. At least some of our obligations to
the person have shifted and some have ceased. For example, we may no longer be obligated to obtain first-party
informed consent from this individual, in which case consent must be obtained from a surrogate decision maker.
The criterion of mental incompetence is one among many commonly employed in assessing moral status and in
determining rights and obligations.

Similar questions arise about what we owe to small children when we involve them in pediatric research that
holds out no promise of direct benefit for child subjects because the goal of the research is to develop new
treatments for children in the future. We often assert that we owe vulnerable parties more, not fewer, protections.
Yet children involved in research that is not intended to benefit them have sometimes been treated as if they have
a diminished moral status.

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Another example of problems of moral status comes from cases of pregnant women who are brain-dead but
whose biological capacities are artificially maintained for several weeks to enable the fetus they are carrying to
be born.5 Ordinarily, we do not think of dead people as having a moral status that affords them a right to be kept
biologically functioning. Moreover, maintaining a brain-dead pregnant woman’s body against her formerly
stated wishes implies that she has been categorized as having a lower moral status than other corpses because
her body is subjected to extreme measures—sometimes for months—to benefit the fetus, the woman’s partner,
or the next of kin in the family.6

The central ethical question is whether a fetus has rights stronger than those of a brain-dead pregnant woman
whose advance directive expresses her wish to stop all technology at the point of brain death. Beliefs about the
moral status of the fetus are powerful motivating considerations in some cases, but the fetus is not the only
individual with moral status and rights at the point of the pregnant woman’s brain death. Discussion continues
about whether a brain-dead woman in this situation has rights that can legitimately be asserted in her advance
directive and whether maintaining her body to sustain the pregnancy violates those rights.7

Finally, views of and practices toward the many nonhuman animals that we use in biomedical research raise
moral status questions. At times we appear to treat them primarily as utilitarian means to the ends of science,
facilitated by the decisions of some person or group considered to be their stewards. The implication is that
laboratory animals are not morally protected against invasive, painful, and harmful forms of experimentation,
and perhaps that they lack moral status altogether. An outright denial of moral status is implausible in light of
the fact that virtually every nation and major scientific association has guidelines to alleviate, diminish, or
otherwise limit what can be done to animals in biomedical research. It is today generally accepted that animals
used in research have some level of moral status, though it often remains unclear which moral considerations
warrant this judgment.

At the root of these questions is a rich body of theoretical issues and practical problems about moral status.

THEORIES OF MORAL STATUS

To have moral status is to deserve at least some of the protections afforded by moral norms, including the
principles, rules, obligations, and rights discussed in Chapter 1. These protections are afforded only to entities
that can be morally wronged by actions. Here is a simple example: We wrong a person by intentionally infecting
his or her computer with a virus, but we do not wrong the computer itself even if we damage it irreparably and
render it nonfunctional. It is possible to have duties with regard to some entities, such as someone’s computer,
without having duties to those entities.8 By contrast, if we deliberately infect a person’s dog with a harmful
virus, we have wronged the dog’s owner and also the dog. Why are persons and dogs direct moral objects and
thereby distinguished from computers and houses, which are merely indirect moral objects? The answer is that
direct moral objects count in their own right, are morally more than mere means to the production of benefits for
others, and have basic interests,9 whereas indirect moral objects do not. But how is the line to be drawn between
what counts in its own right and what does not?

The mainstream approach has been to ask whether a being is the kind of entity to which moral principles or other
moral categories can and should be applied and, if so, based on which properties of the being. In some theories,
one and only one property confers moral status. For example, some say that this property is human dignity—an
inexact notion that moral theory has done little to clarify. Others say that another property or perhaps several
properties are needed to acquire moral status, such as sentience, rationality, or moral agency.

We argue in this chapter that the properties identified in the five most prominent theories of moral status will
not, individually, resolve the main issues about moral status, but that collectively these theories provide a good,
although untidy, framework for handling problems of moral status. We begin by looking at each of the five
theories and assessing why each is attractive, yet problematic if taken to be the sole acceptable theory.

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A Theory Based on Human Properties

The first theory can be called the traditional account of moral status. It holds that distinctively human properties,
those of Homo sapiens, confer moral status. Distinctively human properties demarcate that which has moral
value and delineate which beings constitute the moral community. An individual has moral status if and only if
that individual is conceived by human parents—or, alternatively, if and only if it is an organism with a human
genetic code. The following is a concise statement of such a position by two members of the US President’s
Council on Bioethics (2001–2009):

Fertilization produces a new and complete, though immature, human organism. … A human embryo
is … a whole living member of the species Homo sapiens in the earliest stage. … To deny that
embryonic human beings deserve full respect, one must suppose that not every whole living human
being is deserving of full respect. … [Even embryos] are quite unlike cats and dogs. … As humans
they are members of a natural kind—the human species. … Since human beings are intrinsically
valuable and deserving of full moral respect in virtue of what they are, it follows that they are
intrinsically valuable from the point at which they come into being.10

Many find such a theory attractive because it unequivocally covers all human beings and demands that no
human be excluded on the basis of a property such as being a fetus, having brain damage, or having a congenital
anomaly. We expect a moral theory to cover everyone without making arbitrary or rigged exceptions. This
theory meets that standard. The moral status of human infants, mentally disabled humans, and those with a
permanent loss of consciousness (in a persistent vegetative state) is not in doubt or subject to challenge in this
theory. This theory also fits well, intuitively, with the moral belief that all humans have human rights precisely
because they are human.11

Despite its attractive features, this theory is problematic when taken as a general theory that one and only one
“natural kind” deserves moral status. If we were to train nonhuman apes to converse with us and engage in
moral relationships with us, as some believe has already occurred, it would be baseless and prejudicial to say
that they have a lesser status merely because of a biological difference in species. If we were to encounter a
being with properties such as intelligence, memory, and moral capacity, we would frame our moral obligations
toward that being not only or even primarily by asking whether it is or is not biologically human. We would look
to see if such a being has capacities of reasoning and planning, has a conception of itself as a subject of action, is
able to act autonomously, is able to engage in speech, and can make moral judgments. If the individual has one
or more of these properties, its moral status (at some level) is assured, whereas if it has no such properties, its
moral status might be in question, depending on the precise properties it has. Accordingly, human biological
properties are not necessary conditions of moral status.

Using a species criterion as the proper criterion of human properties is also not as clear and determinative as
some adherents of this first theory seem to think. Consider the example of scientific research in which a
monkey-human chimera is created for the purposes of stem-cell research. This research has the objective of
alleviating or curing neurological diseases and injuries. It is conducted by inserting a substantial human cell
contribution into a developing monkey’s brain. Specifically, investigators implant human neural stem cells into a
monkey’s brain to see what the cells do and where they are located.12 The question is whether functional
integration of these neural cells in a nonhuman primate brain would cause a morally significant change in the
mind of the engrafted animal, and, if it so, what the consequences would be for the moral status of the animal
once born. Thus far, no such human-nonhuman chimera has been allowed to progress past early fetal stages, but
such a chimera could be born and might be recognized as possessing a high level of moral status.

There are cells in this chimera that are distinctly human and cells that are distinctly monkey. The monkey’s brain
is developing under the influence of the human cells. Should it be born, it could possibly behave in humanlike
ways. In theory, the larger the proportion of engrafted human cells relative to host cells, the higher the likelihood
of humanlike features or responses. Such a chimera would possess a substantial human biological contribution
and might have capacities for speech and moral behavior, especially if a great ape was the selected nonhuman

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species.13 Transgenic animals, that is, animals that possess and express genes from a different species, present
similar issues. An example is the much-discussed Harvard oncomouse, which has only mouse cells but also has
bits of human DNA and develops human skin cancers.

Related biomedical research involves the insertion of human stem cells into nonhuman animal embryos in the
hope that chimeric animals containing human organs can be born and their organs transplanted into humans.
These scientific studies began when stem-cell biologists successfully used injections of induced pluripotent stem
cells from rats into mouse blastocysts to create mice having a rat rather than mouse pancreas.14 This mouse-
alteration research led scientists to study whether transplantable human organs might be grown in human-animal
chimeras. The goal is to harvest human organs from host pig-humans in the hope that organ transplants can be
made available to the hundreds of thousands of persons on waiting lists for organs around the world.15

The US National Institutes of Health was concerned about these studies because the injected pluripotent human
cells into nonhuman embryos may have the potential to multiply and possibly to causally affect the embryo’s
neural development, which includes the brain, leaving “uncertainty about the effects of human cells on off-target
organs and tissues in the chimeric animals, particularly in the nervous system, [which] raises ethical and animal
welfare concerns.”16 We cannot decide the moral status of chimeric animals merely by the presence of possible
human neural development, but it remains uncertain how best to decide these issues.17

There has been little opposition, other than a few concerns about human safety, to many mixtures of human and
animal tissues and cells in the context of medical care (e.g., transplantation of animal parts or insertion of
animal-derived genes or cells) and biomedical research (e.g., several kinds of insertion of human stem cells into
animals). However, matters may become worrisome if animal-human hybrids are created. In 2004 the US
President’s Council on Bioethics found “especially acute” the ethical concerns raised by the possibility of
mixing human and nonhuman gametes or blastomeres to create a hybrid. It opposed creating animal-human
hybrid embryos by ex vivo fertilization of a human using animal sperm or of an animal egg using human sperm.
One reason is the difficulty society would face in judging both the humanity and the moral status of such an
“ambiguous hybrid entity.”18 These and other developments in research present challenges to the theory that
fixed species boundaries are determinative of moral status.19

This first theory of moral status confronts another problem as well: The commonsense concept of person is, in
ordinary language, functionally identical to the concept of human being, but there is no warrant for the assertion
that only properties distinctive of the human species count toward personhood or that species membership alone
determines moral status. Even if certain properties strongly correlated with membership in the human species
qualify humans for moral status more readily than the members of other species, these properties are only
contingently connected to being human. Such properties could be possessed by members of nonhuman species
or by entities outside the sphere of natural species, such as God, chimeras, robots, and genetically manipulated
species (and biological humans could, in principle, lack these properties).20

Julian Savulescu has proposed a way to resolve moral-status problems about the aforementioned pig-human
chimeras by appeal to person theory:

A chimera is a genetic mix. … It is not a pig with a human pancreas inserted into it—it is a human-
animal chimera. … [I]t is possible that some future chimeras will develop human or human-like
brains . . . having moral relevance. . . . If there is any doubt about the cognitive abilities of this new
life form, we should check the chimera for its functionality. … In the absence of conclusive
evidence, the default position should be that we assign them [these chimeras] high moral status until
further research has confirmed or disproved this. …

Any human-pig chimera should, then, be assessed against the criteria of personhood. … [A]ny such
chimera should be accorded the highest moral status consistent with its likely nature.21

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Savulescu’s attention to the central place of moral status is appropriate, but it is questionable whether criteria of
personhood should govern our assessments of moral status. The concept of and theory of persons is unsuited to
deliver what is required unless it is convincingly argued that the concept of persons is a normative concept that
can adequately resolve moral status questions. The person-theory literature is not intrinsically moral in nature,
though it is also not useless in moral argument.22 However, person theory has not proven to be the key to a
satisfactory model of moral status. Moral status does not require personhood, and personhood does not clearly
entail moral status, depending on what is meant by the rather imprecise notion of a “person.”23

Some people maintain that what it means to be a person is to have some set of human biological properties;
others maintain that personhood is delineated not biologically, but in terms of certain cognitive capacities, moral
capacities, or both. What counts as a person expands or contracts as theorists construct their theories so that
precisely the entities for which they advocate will be judged to be persons and other entities will be judged not
to be persons. In one theory, human embryos are declared persons and the great apes are not, whereas in another
theory the great apes are persons and human embryos are not.

The theory of moral status as grounded in properties of humanity might seem salvageable if we include both
human biological properties and distinctively human psychological properties, that is, properties exhibiting
distinctively human mental functions of awareness, emotion, cognition, motivation, intention, volition, and
action. This broader scope, however, will not rescue the theory. If the theory is that nonhuman animals are not
morally protected in a context of biomedical research because they lack psychological characteristics such as
self-determination, moral motivation, language use, and moral emotions, then consistency in theory requires
stating that humans who lack these characteristics likewise do not qualify for moral protections for the same
reason. For any human psychological property we select, some human beings will lack this characteristic (or at
least lack it to the relevant degree); and frequently some nonhuman animal will possess this characteristic.
Primates, for example, often possess humanlike properties that some humans lack, such as a specific form of
intellectual quickness, the capacity to feel pain, and the ability to enter into meaningful social relationships.
Accordingly, this first theory based on human properties does not by itself qualify as a comprehensive account
of moral status.

Nonetheless, it would be morally perilous to give up the idea that properties of humanity form a basis of moral
status. This position is entrenched in morality and provides the foundation of the claim that all humans have
human rights. Accordingly, the proposition that some set of distinctive human properties is a sufficient, but not
necessary, condition of moral status is an attractive and we think acceptable position.24 However, we leave it an
open question precisely which set of properties counts, and we acknowledge that argument is needed to show
that some properties count whereas others do not. We also acknowledge that it could turn out that the properties
we regard as the most critical human properties are not distinctively human at all.

The acceptance of a criterion of human properties as supplying a sufficient condition of moral status does not
rule out the possibility that properties other than distinctively human ones also constitute sufficient conditions of
moral status. To test this hypothesis, we turn to consideration of the other four theories.

A Theory Based on Cognitive Properties

A second theory of moral status moves beyond biological criteria and species membership to cognitive
properties that are often associated with the properties of being a person. “Cognition” refers to processes of
awareness such as perception, memory, understanding, and thinking. This theory does not assume that only
humans have such properties, although the starting model for these properties is usually the competent human
adult. The theory is centrally that individuals have moral status because they are able to reflect on their lives
through their cognitive capacities and are self-determined by their beliefs in ways that incompetent humans and
many nonhuman animals are not.

Properties found in theories of this second type include (1) self-consciousness (consciousness of oneself as
existing over time, with a past and future); (2) freedom to act and the capacity to engage in purposeful actions;
(3) ability to give and to appreciate reasons for acting; (4) capacity for beliefs, desires, and thoughts; (5) capacity

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to communicate with other persons using a language; and (6) rationality and higher order volition.25 The goal of
theories of this type is to identify a set of cognitive properties possessed by all and only beings having moral
status. We here set aside disputes internal to these theories about precisely which cognitive properties are jointly
necessary and/or sufficient for personhood, and therefore for moral status. To investigate the problems with this
general type of theory, it does not matter for present purposes whether only one or more than one of these
properties must be satisfied.

The model of an autonomous human being, or person, is conceived in many of these theories in terms of
cognitive properties such as those listed in the previous paragraph. The theory that these properties form the
foundation of moral status acknowledges that if a nonhuman animal, a hybrid human, or a brain-damaged human
is in all relevant respects like a cognitively capable human being, then it has a similar (presumably identical)
moral status. A corollary is that if one is not in the relevant respects similar to a cognitively competent human
being, one’s moral status is correspondingly reduced or vacated.

As the number or level of the required cognitive abilities is increased, a reduction will occur in the number of
individuals who satisfy the theory’s conditions, and therefore fewer individuals will qualify for moral status or at
least for elevated moral status. For example, if all six of the previously listed criteria must be satisfied, many
humans would be excluded from elevated moral status. Likewise, if the quality or level of the required cognitive
skills is reduced, the number of individuals who qualify for protection under the theory will presumably
increase. For example, if only understanding and intentional action at a basic level were required, some
nonhuman animals would qualify.

A worrisome feature of this theory is that infants, the senile elderly, persons with a severe mental disability, and
others who are generally regarded as having a secure moral status will lack the cognitive capacities required to
attain moral status. Most nonhuman animals may also lack these cognitive capacities. The level of cognitive
abilities required also may vary from one theory to the next theory. In explicating a Kantian position, Christine
Korsgaard writes, “Human beings are distinguished from animals by the fact that practical reason rather than
instinct is the determinant of our actions.”26 If this criterion of practical reason were the sole criterion of moral
status, then biological “humans” who lack practical rationality would be mere animals (and not even truly
human beings).

An objection to this theory, often directed against theories predicated primarily on human dignity or autonomy,
is “the argument from marginal cases.” This argument maintains that every major cognitive criterion of moral
status (intelligence, agency, self-consciousness, etc.) excludes some humans, including young children and
humans with serious brain damage. These “marginal” cases of cognitive human capacities can be at the same
level of cognitive (and other) capacities as some animals, and therefore to exclude these animals is also to
exclude comparably situated humans. If animals can be justifiably treated as mere means to human ends, then
comparable “marginal” cases of human capacity can also be justifiably treated as mere means to human ends—
for example, by becoming research subjects.27 This position precludes a high level of moral status for many
weak, vulnerable, and incapacitated humans.

This theory therefore does not function, as the first theory does, to ensure that vulnerable human beings will be
morally protected. The more vulnerable individuals are by virtue of cognitive deficiency, the weaker are their
claims for moral protection. The fact that members of the human species typically exhibit higher levels of
cognitive capacities than members of other species does not alleviate this problem. Under this theory, a
nonhuman animal in principle can overtake a human in moral status once the human loses a measure of mental
abilities after a cataclysmic event or a decline of capacity. For example, once a primate training in a language
laboratory exceeds a deteriorating Alzheimer’s patient on the relevant scale of cognitive capacities, the primate
would attain a higher moral status in this type of theory.28

Writers in both science and biomedical ethics often assume that nonhuman animals lack the relevant cognitive
abilities, including self-consciousness (even basic consciousness), autonomy, or rationality, and are therefore not
elevated in status by this theory.29 However, this premise is more assumed than demonstrated. Much has been
demonstrated about cognition in animal minds by ethologists who investigate animal cognition and mental

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properties using evolutionary and comparative studies as well as naturalistic and laboratory techniques of
observation and experimentation.30 Comparative studies of the brain show many relevant similarities between
the human species and various other species. In behavioral studies, some great apes appear to make self-
references or at least to show self-awareness or self-recognition, and many animals learn from the past and use
their knowledge to forge intentional plans of action for hunting, stocking reserve foods, and constructing
dwellings.31 In play and social life, many animals understand assigned functions and either follow designated
roles or decide for themselves what roles to play.32 Moreover, many animals seem to understand and intend in
ways that some incapacitated humans cannot. These are all cognitively significant properties, and therefore, in
this second theory, they are morally significant properties that award a more elevated moral status to nonhuman
animals with the relevant properties than to humans who lack them.

Defenders of this second type of theory need to address how to establish the relevance and importance of the
connection asserted between cognitive properties and moral protections. Why do cognitive properties of
individuals determine anything at all about their moral status? We are not asserting that a theory of moral status
cannot be based on nonmoral properties. It can, but such a theory of moral status must make a connection
between its preferred nonmoral properties and the claim that they confer moral status. Defenders need to explain
why the absence of this property (e.g., self-consciousness) makes a critical moral difference and precisely what
that difference is. If a human fetus or an individual with advanced dementia lacks certain cognitive properties, it
does not follow, without supporting argument, that they lack moral status and associated moral protections.

To conclude this section, this second theory, like the first, fails to establish that cognitive capacity is a necessary
condition of moral status. However, the theory arguably does succeed in showing that some set of cognitive
capacities is a sufficient condition of moral status. Cognitive capacities such as reasoned choice occupy a central
place in what we respect in an individual when we invoke moral principles such as “respect for autonomy.” The
main problem with this second theory is not that it invokes these properties, but that it considers only cognitive
properties and neglects other potentially relevant properties, notably properties on the basis of which individuals
can suffer and enjoy well-being. We will see below in examining the fourth theory of moral status that certain
noncognitive properties are also sufficient for moral status.

A Theory Based on Moral Agency

In a third type of theory, moral status derives from the capacity to act as a moral agent. The category of moral
agency is subject to different interpretations, but, fundamentally, an individual is a moral agent if two conditions
are satisfied: (1) the individual is capable of making moral judgments about the rightness and wrongness of
actions, and (2) the individual has motives that can be judged morally. These are moral-capacity criteria, not
conditions of morally correct action or character. An individual could make immoral judgments and have
immoral motives and still be a moral agent.33

Several theories fall under this general type, some with more stringent conditions of moral agency than the two
just listed. Historically, Immanuel Kant advanced what has become the most influential theory of moral agency.
He concentrated on moral worth, autonomy, and dignity, but some of his formulations suggest that he is also
proposing conditions of moral status. For example, moral autonomy of the will is central to his theory. It occurs
if and only if one knowingly governs oneself in accordance with universally valid moral principles. This
governance gives an individual “an intrinsic worth, i.e., dignity,” and “hence autonomy is the ground of the
dignity of human nature and of every rational creature.”34

Kant and many after him have suggested that capacity for moral agency gives an individual a moral respect and
dignity not possessed by individuals incapable of moral agency—human or nonhuman. This account has a
clearly attractive feature: Being a moral agent is indisputably a sufficient condition of moral status. Moral agents
are the paradigmatic bearers of moral status. They know that we can condemn their motives and actions, blame
them for irresponsible actions, and punish them for immoral behavior.35

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Accordingly, like the first two theories, this third theory supplies a sufficient condition of moral status, and, like
the first two, it fails to identify a necessary condition of moral status. If being a moral agent (or being morally
autonomous) were a necessary condition of moral status, then many humans to whom moral protections are
extended would be stripped of their moral status, as would most and perhaps all nonhuman animals. Many
psychopaths, patients with severe brain damage, patients with advanced dementia, and animal subjects in
research would lack moral status in this theory. Yet individuals in these classes deserve to have their interests
attended to by many parties, including institutions of medical care. The reason for such protections cannot be a
capacity of moral agency, because these individuals have none.

Interpreting the theory of moral agency as a necessary condition of moral status is strongly counterintuitive. A
morally appropriate response to vulnerable parties such as young children, the severely intellectually disabled,
patients with senile dementia, and vulnerable research animals is that they deserve special protection, not that
they merit no protection. Whether these individuals are moral agents is not the primary consideration in
assessing their moral status.

Accordingly, this third theory provides a sufficient condition of moral status but not a necessary one. We have
already seen that there are other ways to acquire moral status, and we will now argue that a fourth theory lends
additional support to this conclusion.

A Theory Based on Sentience

Humans as well as nonhuman animals have properties that are neither cognitive nor moral properties, yet count
toward moral status. These properties include a range of emotional and affective responses, the single most
important being sentience—that is, the capacity for consciousness understood as experience in the form of
feelings. Specifically, sentience is the capacity for sensations, feelings, or other experiences that are agreeable or
disagreeable. Because sentient animals have a subjective quality of life, they have an experiential welfare and
therefore welfare interests.36

A central line of moral argument in this fourth theory is the following: Pain is an evil, pleasure a good. To cause
pain to any entity is to harm it. Many beings can experience pain and suffering, which are bad in themselves and
even worse when experienced over an extended period of time.37 To harm these individuals is to wrong them,
and such harm-causing actions are morally prohibited unless one has moral reasons sufficient to justify them.

Proponents of this fourth theory appropriately claim that having the capacity of sentience is a sufficient
condition of moral status.38 The properties of being able to experience pain and suffering are almost certainly
sufficient to confer some measure of moral status. One of the main objectives of morality is to minimize pain
and suffering and to prevent or limit indifference and antipathy toward those who are experiencing pain and
suffering. We need look no further than ourselves to appreciate this point: Pain is an evil to each of us, and the
intentional infliction of pain is a moral-bearing action from the perspective of anyone so afflicted. What matters,
with respect to pain, is not species membership or the complexity of intellectual or moral capacities. It’s the
pain. From this perspective, all entities that can experience pain and suffering have some level of moral status.

This theory has broad scope. It reaches to vulnerable human populations and to many animals used in
biomedical research. We study animals in biomedical research because of their similarities with humans. The
reason to use animals in research is that they are so similar to humans, and the reason not to use animals in
research is that they are so similar to humans in their experience of pain and suffering. Notably in the case of
primates, their lives are damaged and their suffering often resembles human suffering because they are similar to
us physically, cognitively, and emotionally.

Precisely who or what is covered by this conclusion, and when, is disputed, especially in the large literatures on
animal research, human fetal research, and abortion. If sentience alone confers moral status, a human fetus
acquires moral status no earlier and no later than the point of sentience. Growth to sentience in the sense of a
biological process is gradual over time, but the acquisition of sentience—or the first onset of sentience—is, in
this fourth theory, the point at which moral status is obtained. Some writers argue that development of a

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functioning central nervous system and brain is the proper point of moral status for the human fetus, because it is
the initial biological condition of sentience.39 This approach does not protect human blastocysts or embryos and
has proved to be an uncertain basis on which to build arguments allowing or disallowing abortion, because there
is disagreement about when the brain has developed sufficiently for sentience. However, in this theory a fetus
acquires moral status at some point after several weeks of development, and thus abortions at that point and later
are (prima facie) impermissible.40 We are not, in making these observations, presenting objections to sentience
theory or to any version of it. We are noting only that these problems need to be addressed in a comprehensive
theory of moral status that emphasizes sentience.

Defenders of a sentience theory often quote Jeremy Bentham’s famous statement: “The question is not, Can they
reason? nor, Can they talk? but, Can they suffer?”41 Advocates emphasize that moral claims on behalf of any
individual, human or nonhuman, may have nothing to do with intelligence, capacity for moral judgment, self-
consciousness, rationality, personality, or any other such fact about the individual. The bottom line is that
sentience is a sufficient condition of moral status independent of these other properties of individuals.

The theory that sentience is a sufficient condition of moral status makes more modest claims than the theory that
sentience is a necessary and sufficient condition and thus the only criterion of moral status. The latter theory is
embraced by a few philosophers who hold that properties and capacities other than sentience, such as human
biological life and cognitive and moral capacities, are not defensible bases of moral status.42 Nonsentient beings,
such as computers, robots, and plants (and also nonsentient animals), lack the stuff of moral status precisely
because they have no capacity for pain and suffering; all other beings deserve moral consideration because they
are sentient.

This very strong version of the fourth theory is problematic. The main problem arises from the claim that an
individual lacking the capacity for sentience lacks moral status. On the human side, this theory disallows moral
status for early-stage fetuses as well as for all humans who have irreversibly lost the capacity for sentience, such
as patients with severe brain damage. It is not satisfactory to assert that absence of sentience entails absence of
moral status. Proponents of the sentience theory might seek to defend it in several ways, probably by accepting
another criterion of moral status in addition to that of sentience. This maneuver would give up the claim that
sentience is a necessary and sufficient condition of moral status, which would be to abandon robust theories of
the fourth type.

Another problem with strong versions of the fourth theory is their impracticability. We could not hope to
implement these versions in our treatment of all species whose members are capable of sentience, and we could
not do so without presenting grave danger to human beings. Virtually no one defends the view that we cannot
have public health policies that vigorously control for pests and pestilence by extermination. The most plausible
argument by a sentience theorist who holds the view that sentience is sufficient for moral status is that the theory
grants only some level of moral status to sentient beings.

The most defensible theory of this fourth type holds (1) that not all sentient creatures have the same level of
sentience and (2) that, even among creatures with the same level of sentience, sentience may not have the same
significance because of its interaction with other properties. A few writers believe that there is a gradation of
richness or quality of life, depending on level of consciousness, social relationships, ability to derive pleasure,
creativity, and the like. A continuum of moral status scaled from the autonomous adult human down through the
lowest levels of sentience can, in this way, be layered into sentience theory. Even if many sentient animals have
moral status, it does not follow that humans should be treated no differently than other animals including the
great apes. There may be many good reasons for forms of differential treatment.

In one such theory a human life with the capacity for richness of consciousness has a higher moral status and
value than even a richly flourishing animal life such as that of a dog or a bonobo. This judgment has nothing to
do with species membership, but rather with “the fact that [rich, conscious] human life is more valuable than
animal life” by virtue of capacities such as genuine autonomy. In this theory human life is valuable and has
moral status only under certain conditions of quality of life. Human life, therefore, can lose some of its value and
moral status by degrees as conditions of welfare and richness of experience decrease.43 All such theories have

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problems that need resolution because the moral status of a life and its protections decline by degrees as
conditions of welfare and richness diminish. When loss of capacity occurs, for example, humans and nonhumans
alike will have a reduced moral status, and the most vulnerable individuals will become more susceptible to
abuse or exploitation because of their reduced moral status. No theory that supports this conclusion in general is
morally acceptable.

In light of the several problems surrounding the theory that sentience is both a necessary and sufficient condition
of moral status, we conclude that this fourth theory—like the first three theories—provides a sufficient, but not a
necessary, condition of some level of moral status. This theory needs supplementation by the other theories
previously discussed to provide a comprehensive account of moral status. Sentience theory can be used to
determine which beings have moral status, whereas other theories could help determine the degree of moral
status. Unless augmented, this fourth theory does not determine the precise level of moral status or the proper
scope of moral protections.

A Theory Based on Relationships

A fifth and final theory is based on relational properties. This theory holds that relationships between parties
confer moral status, primarily when relationships establish roles and obligations. An example is the patient-
physician relationship, which is a relationship of medical need and provision of care. Once this relationship is
initiated, the patient gains a right to care from this particular physician lacked by persons who are not the
physician’s patient. The patient does not have this status independent of an established relationship, and the
physician does not have the same obligations to those outside the relationship.

Other examples are found in relationships that do not involve a formal understanding between the parties, such
as bonds with persons with whom we work closely and relationships that involve no mutual understanding
between the parties, such as human initiatives that establish relations with laboratory animals and thereby
change what is owed to these animals. A much-discussed example is the relationship between human personnel
in laboratories and animal subjects who are thoroughly dependent on their caretakers. Here the caretaker role
generates obligations on investigators and other responsible parties.

This fifth theory tries to capture the conditions under which many relationships in research and practice,
especially those involving social interaction and reciprocity, are stronger and more influential than relationships
with strangers and outsiders. One version of this theory depicts the relevant relationships as developing in
diverse ways over time. Alzheimer’s patients and experimental animals, for example, have a history in which the
human moral community has assessed the importance of its relationship to these individuals. In each case we
owe protection and care to those with whom we have established these relationships, and when they are
vulnerable to harm we have special obligations to protect and care for them because of these relationships.44

In some versions of this theory, the human fetus and the newborn baby are examples of those who gradually
come to have a significant moral status through special social relationships. Here is one such account of the
moral status of the human fetus:

The social role in question develops over time, beginning prior to birth. … A matrix of social
interactions between fetus and others is usually present well before parturition. Factors contributing
to this social role include the psychological attachment of parents to the fetus, as well as advances in
obstetric technology that permit monitoring of the health status of the fetus. … The less the degree
to which the fetus can be said to be part of a social matrix, the weaker the argument for regarding
her/him as having the same moral status as persons. Near the borderline of viability, … the fetus
might be regarded as part of a social network to a lesser degree than at term. If so, the degree of
weight that should be given to the fetus’s interests varies, being stronger at term but relatively
weaker when viability is questionable.45

Despite its attractions, this fifth theory cannot do more than account for how moral status and associated
protections are sometimes established. If this theory were taken as the sole basis of moral status, only social

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bonds and special relationships would determine moral status. Critical rights such as the right to life and the
right not to be confined have no force in such a theory unless rights are conferred in a context of relationships.
The theory is unsustainable as an account of moral status if it rejects, neglects, or omits the insights in the
previous four theories, which recognize moral status on the basis of qualities (cognition, sentience, etc.) that can
be acknowledged independently of relationships. For example, in the fourth theory, the property of sentience is
status conferring. When we wrongfully harm a human research subject or a human population through
environmental pollution, it is incorrect to say that the harming is wrong merely because we have an established
laboratory, clinical, or social relationship with either particular individuals or populations. We behave wrongly
because we cause gratuitous and unnecessary risk, pain, or suffering, which would be so whether or not an
established relationship exists.

The problem of moral status is fundamentally about which beings have moral status, and this fifth theory does
not directly address this problem. It rather focuses on the basis on which beings sometimes gain or lose specific
moral rights or generate or discontinue specific moral obligations. Accordingly, this fifth theory does not supply
a necessary condition of moral status, and, in contrast to the other theories we have examined, it also does not
clearly provide a sufficient condition of moral status in many cases of important relationships.46 Many loving
and caring relationships, with various kinds of beings, do not confer moral status on those beings. No matter
how much we love our children’s closest friends or a neighbor’s pet, they do not gain moral status by virtue of
our relationship to them. Nor does the lack of such a relationship indicate a lack of moral status. An individual
still may gain status under criteria drawn from one of the four previous theories (humanity, cognition, moral
agency, and sentience). This approach is the best way to maximally preserve claims of moral status for
individuals no longer capable of having significant interpersonal relationships. They will not lose all moral
status merely because relationships have been lost.

In sum, the fifth theory’s primary contribution is to show that certain relationships account for how many
individuals acquire or lose some moral entitlements and others engender or discontinue obligations. In this way,
the theory helps account for different degrees of moral status, as discussed in the section below on “Degrees of
Moral Status.”

FROM THEORIES TO PRACTICAL GUIDELINES

Each of the five theories examined thus far has acceptable and attractive elements. However, each theory risks
making the mistake of isolating a singular property or type of property—biological species, cognitive capacity,
moral agency, sentience, or special relationships—as the sole or at least the primary criterion of moral status.
Each theory proposes using its preferred property for including certain individuals (those having the property)
and excluding others (those lacking the property). Each theory thereby becomes too narrow to be a general
theory of moral status unless it accepts some criteria in one or more of the other four theories.

From ancient Hellenic times to the present, we have witnessed different motives and theories at work when
groups of people (e.g., slaves and women) have been denied a certain social standing because they lack some
highly valued property that would secure them full moral status. Over time, views about the moral acceptability
of these presumed criteria have changed and have altered beliefs about the moral status of members of these
groups. For example, women and minority groups denied equal moral status later received, in many societies,
the equal status that ought never to have been denied. The worry still today is that some groups, especially
vulnerable groups including some patients and research subjects, still face a discriminatory social situation: They
fail to satisfy criteria of moral status because the dominant criteria have been tailored specifically so that they do
not qualify for full—or perhaps even partial—moral status. Discussion in biomedical ethics has focused
principally on whether the following are vulnerable groups of this description: human embryos, human fetuses,
anencephalic children, human research subjects, animal research subjects, and individuals affected by
unresponsive wakefulness syndrome (or persistent vegetative state).47

The primary norms in each theory—which we hereafter refer to as criteria of moral status (rather than theories
or conditions of moral status)—work well for some problems and circumstances in which decisions must be

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made, but not well for other problems and circumstances.

Appropriation of the Best Criteria from the Five Theories

Ideally, we can adopt the best from each of the five theories and meld these elements into a multicriterial,
coherent account of moral status.48 This strategy will help accommodate the diversity of views about moral
status, will allow a balancing of the interests of different stakeholders such as the interests of scientists in new
knowledge and the interests of research subjects, and will help avoid intractable clashes of rights, such as
conflicts between the rights of scientists to engage in research and the rights of human embryos. We hereafter
assume that, in principle, the ideal of a coherent, multicriterial account of moral status can be satisfied; but a
unified and comprehensive account of moral status is a demanding and ambitious project that we make no claim
to have undertaken in the present chapter.

Degrees of Moral Status

In many accounts of moral status, not all individuals enjoying moral status have it categorically, without
qualification, or fully. In some theories, competent, adult humans have a broader array of rights than other
beings, especially rights of self-determination and liberty, because of their capacities of autonomy and moral
agency. Despite the now common view that many species of animals involved in research have some level of
moral status, it is rare to find a theory of moral status that assigns all animals in research the same degree of
moral status as human persons.49 Even defenders of animal rights generally acknowledge that it is worse to
exterminate a person than to exterminate a rat. Another common view is that frozen human embryos do not have
the same moral status as human persons. But are these claims about higher and lower moral status defensible?
Does a defensible theory recognize degrees of moral status?

We start toward an answer by examining a groundbreaking case in public policy that relies on the idea of
degrees of moral status. This case derives from the history of debate and legislation about human embryo
research in the United Kingdom. The morally contentious issues surrounding this research were first considered
by the Committee of Inquiry into Human Fertilisation and Embryology (the Warnock Committee, 1984)50 and
later debated in Parliament during passage of the Human Fertilisation and Embryology Act of 1990. Regulations
in 2001 set regulatory policy governing the use of embryos in research. These regulations were indebted to a
2000 report by the Chief Medical Officer’s Expert Group.51 According to this report, British policy affirms the
following moral principles as the moral basis of law and regulation regarding the use of embryos in stem-cell
research:

The 1990 Act reflects the majority conclusion of the Warnock Committee. The use of embryos in
research in the UK is currently based on the [following] principles expressed in their Report:

The embryo of the human species has a special status but not the same status as a living child
or adult.
The human embryo is entitled to a measure of respect beyond that accorded to an embryo of
other species.
Such respect is not absolute and may be weighed against the benefits arising from proposed
research.
The embryo of the human species should be afforded some protection in law. …

The Expert Group accepted the ‘balancing’ approach which commended itself to the majority of the
Warnock Committee. On this basis, extending the permitted research uses of embryos appears not to
raise new issues of principle.52

This position is a somewhat vague, but common—and, in this case, a highly influential—expression of an
account of degrees and levels of moral status and concomitant protections.

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The five theories we have addressed can each be interpreted in terms of degrees. For example, in the fourth
theory, based on sentience, moral status is arguably proportional to degree of sentience and perhaps to the
quality and richness of sentient life. Similarly, in the fifth theory, based on relationships, moral status is
expressible in terms of degrees of relationship: Relationships come in different degrees of closeness, and
relations of dependence can be far more significant in some cases than in other cases.

Arguably, all morally relevant properties in each of these theories are degreed. Capacity for language use,
sentience, moral agency, rationality, autonomous decision making, and self-consciousness all come in degrees
and may not be limited to human beings.53 From this perspective, there are higher and lower levels of moral
status, and we can conceive a continuum running from full moral status to no moral status.

But is an account of degrees of moral status superior to an all-or-nothing account of moral status?54 The notion
of a lesser moral status (including the notion of being subhuman or inhuman) has been troublesome throughout
history, and its remnants linger in many cultural practices. Is it, then, best to deny or to affirm that there are
degrees of moral status?

These problems of degrees of moral status should not obscure the fact that all beings with moral status, even
those unambiguously below full moral status, still have some significant moral status. Disagreement is inevitable
regarding whether the concept of degrees is suitable for the analysis of all properties that confer moral status.
For example, disagreement appears in the writings of those having firm commitments to the first theory, based
on properties of humanity. One controversial case involves the potential of a human fetus to become a sentient,
cognitively aware, moral agent. In some theories this potential is not expressible by degrees because full
potential is present from the start of an individual’s life; a human fetus therefore has full moral status at its
origins and throughout its existence. In other theories human fetuses have a lower degree of moral status because
they are only potential persons, not yet actual persons.

In one type of theory, the moral status of human zygotes, embryos, and fetuses increases gradually during
gestation.55 This theory can be developed to make potentiality itself a matter of degree (degree of potentiality).
For example, brain defects in a fetus or infant can affect the potential for cognitive and moral awareness and also
for the relationships that can be formed with others. This theory can also be expressed in terms of different sets
of rights—for instance, pregnant women may have more rights than their fetuses as well as a higher level of
moral status than their fetuses—at least at some stages of fetal development.

A practically oriented theory of moral status will need to determine with precision what an individual’s or a
group’s status is, not merely that the individual or group has some form of status. A comprehensive theory will
explain whether and, if so, how the rank will change as properties that contribute to status are progressively
gained or lost. We ought not to be optimistic that such a theory can be developed to cover all problems of moral
status, but we can hope to achieve a better theory than has thus far been available.

The Connection between Moral Norms and Moral Status

We have distinguished questions about moral status from the questions about the moral norms addressed in
Chapter 1. We will now further develop this distinction. Criteria of moral status are moral norms in the generic
sense of “moral norm.” A moral norm in the generic sense is a (prima facie) standard that has the authority to
judge or direct human belief, reasoning, or behavior. Norms guide, require, or commend. Failure to follow a
norm warrants censure, criticism, disapproval, or some other negative appraisal. Criteria of moral status satisfy
this description. Although not the same type of norm as principles and rules, these criteria are normative
standards.

Criteria of moral status also can be understood in terms of the discussions in Chapter 1 of moral conflict, moral
dilemmas, prima facie norms, and the specification and balancing of norms. Criteria of moral status can and
often do come into conflict. For example, the criterion of sentience (drawn from theory 4) and the criterion of
human species membership (drawn from theory 1) come into conflict in some attempts to determine the moral
status of the early-stage human fetus. The sentience criterion expressed in theory 4 suggests that the fetus gains

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status only at the point of sentience, whereas the criterion of human properties (in theory 1) suggests that moral
status accrues at human biological inception.

Guidelines Governing Moral Status: Putting Specification to Work

Conflicts of theory and interpretation can and should be addressed using the account of specification delineated
in Chapter 1. Norms are specified by narrowing their scope, which allows us to create what we will call
guidelines governing moral status. Others might call them rules instead of guidelines, but in our framework rules
specify principles whereas guidelines specify criteria of moral status. The goal is to extract content from the
criteria found in one or more of the five theories to show how that content can be shaped into increasingly
practical guidelines. We will state these guidelines using the language of a “level of moral status.”

The concept of a level should be interpreted in terms of degrees of moral status. This approach provides for a
continuum of moral status, running from a narrow range of moral protections to a broad range of moral
protections. For example, infants, the mentally handicapped, and many persons who are cognitively incompetent
have some level of moral status, but they do not have the same level of moral status as autonomous persons. For
instance, those who lack substantial cognitive and autonomy capacities will not have various decision-making
rights such as the right to give an informed consent that are enjoyed by those who are substantially autonomous,
but they will still have rights to life and to health care. To say that they have a lower moral status is not to
demean or degrade them. It is to recognize that they do not have the same entitlements that others have. But their
vulnerabilities also may confer entitlements on them that others do not have such as various entitlements to
medical care and special education.

To show how norms can be made progressively practical, we will now treat illustrative specifications that
qualify as guidelines. We are not recommending the five guidelines below. Our goal is merely to clarify the
nature, basis, and moral significance of these guidelines and to show how they are formed using the method of
specification.

Consider first a circumstance in which the criterion “All living human beings have some level of moral status”
comes into conflict with the criterion “All sentient beings have some level of moral status.” We start with two
possible specifications (guidelines 1 and 2 below) that engage the criteria put forward in theories 1 (the criterion
of human life) and 4 (the criterion of sentience):

Guideline 1. All human beings who are sentient or have the biological potential for sentience have
some level of moral status; all human beings who are not sentient and have no biological potential
for sentience have no moral status.

This specification allows for additional specification applicable to particular groups such as brain-dead
individuals, anencephalic individuals (those without a cerebrum and cerebellum, which are essential to
significant levels of thinking and behavior), and individuals who have sufficient brain damage that they are not
sentient and have no potential for sentience. Guideline 1 says that individuals in such groups have no moral
status. By contrast, the guideline assigns some level of moral status to all healthy human embryos and fetuses
when they are either sentient or have the potential to be sentient. Guideline 1 cannot be used to support human
embryonic stem-cell research or abortions and so might not support the transplantation of human fetal stem cells
into a Parkinson’s patient. Guideline 1 stands opposed to these practices, though it too can be further specified.

A different, and obviously competitive, guideline that is achieved through specification is this:

Guideline 2. All human beings who are sentient have some level of moral status; all human beings
who are not sentient, including those with only a potential for sentience, have no moral status.

This second guideline has profoundly important moral implications for whether embryos and early-stage fetuses
have moral status and therefore implications for moral debates about human embryonic stem-cell research and
early-stage abortions. It states that although life prior to sentience is morally unprotected, the fetus is protected

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against abortion and research interventions once it becomes sentient.56 Unlike guideline 1, guideline 2 would
allow the transplantation (after appropriate research) of human fetal stem cells into a Parkinson’s patient.

Clarifying the exact implications of this second guideline would require further specification(s). In the case of
abortion in particular, even when a fetus is sentient its continued existence could threaten the life or health of the
pregnant woman. On one possible line of further specification, sentient fetuses possess the same rights possessed
by all sentient human beings, and an abortion is a maleficent act as objectionable as the killing of an innocent
person. On a different line of specification, sentient fetuses have a diminished set of rights if their presence
threatens the life of a pregnant woman. In the abstract form here presented, guideline 2 is only a first step in
grappling with problems governing several classes of individuals.

A third possible guideline reached by specification appeals both to theory 4 (sentience) and to theory 2
(cognitive capacity):

Guideline 3. All sentient beings have some level of moral status; the level is elevated in accordance
with the level of sentience and the level of cognitive complexity.

According to this guideline, the more sentient the individual and the richer the cognitive or mental life of the
individual, the higher the individual’s level of moral status. The capacities of creatures for an array of valuable
experiences vary. As a result, not all lives are lived at the same high level of perception, cognition, appreciation,
esthetic experience, and the like. The issue is not whether a life has value; it is about different levels of value
because of differences in sentience and the quality of mental life. This guideline is a first step toward working
out the common intuition in research involving animals that great apes deserve stronger protections than pigs,
which deserve more protection than rats, and so forth. However, this guideline might not turn out to support
many common intuitions about the mental capacities of species; for example, pigs could turn out to have a richer
mental life than dogs or baboons and therefore a higher moral status than members of these species.57

Depending on how this guideline is further specified, it might or might not support use of a ready-to-transplant
pig heart valve into a human heart. The level of the pig’s capacities of sentience and cognition might make a
critical moral difference in whether the valve can be harvested from pigs in the first place. Under this guideline,
questions of the comparative value of the human life saved and the sacrificed pig’s life can only be decided by
inquiry into the levels of their sentience and cognition.

Consider now a fourth guideline, this one a specification of the criterion of moral agency (theory 3) in conflict
with the criterion of human-species properties (theory 1):

Guideline 4. All human beings capable of moral agency have equal basic rights; all sentient human
beings and nonhuman animals not capable of moral agency have a diminished set of rights.

This guideline sharply elevates the status of moral agents while giving a lesser status to all other sentient
creatures. Defense of this guideline would likely require an account of equal basic rights and of which rights are
held and not held by those incapable of moral agency (a subject partially treated in Chapter 4).

This guideline is, from one perspective, obviously correct and noncontroversial: Competent individuals capable
of moral agency have a set of rights—for example, decision-making rights—not held by individuals who are not
capable of moral agency, whether the latter are human or nonhuman. Far more controversial and difficult to
handle by specification is the underlying premise that human individuals who lack capacity for moral agency
thereby have a reduced moral status. Proponents of theory 1 presumably would altogether reject this premise in
their specifications. Categorization of reduced moral status could affect many decisions in bioethics such as how
to rank order who has primacy in the order of who receives organ transplants (under conditions of scarcity of
organs). A lingering question would be whether individuals with no capacity for moral agency should be
accorded a reduced moral status that ranks them sufficiently low that they are not competitive for
transplantation.

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Consider, as a final example, a possible guideline that engages the demands of the fifth theory (of status through
relationships) and the fourth theory (of sentience). This specification brings the two criteria to bear on the
circumstance of laboratory animals. The following formulation assumes the moral proposition that the
“communal relationship” between persons in charge of a laboratory and the animals in it is morally significant:

Guideline 5. All sentient laboratory animals have a level of moral status that affords them some
protections against being caused pain, distress, or suffering; as the likelihood or the magnitude of
potential pain, distress, or suffering increases, the level of moral status increases and protections
must be increased accordingly.

This guideline is the first step in making precise the idea that laboratory animals who benefit human
communities gain a higher moral status than would the same animal having only sentience. Laboratory rats, for
example, gain more status than rats living in the woods or in the attics of hospitals. Human initiatives that
establish relations with animals change what is owed to them, and they thereby acquire a higher status than do
wild animals of the same species. The main conditions of interest are the vulnerability and dependence
engendered in animals when humans establish relations with them in laboratories. The more vulnerable research
makes the animals to pain and suffering, the more obligations of animal care and protection increase.

This guideline has sometimes been expressed in terms of human stewardship over the animals—that is, the
careful and responsible oversight and protection of the conditions of an animal entrusted to one’s care. However,
a better model—because of its closeness to moral status criteria—is grounded in obligations of reciprocity and
nonmaleficence: Animal research subjects gain a higher moral status because of the use made of their bodies and
the harm or risk of harm in the research.

These five guidelines might be presented in such abstract and indeterminate formulations that they will seem
doubtfully practicable. If their abstractness cannot be further reduced, this outcome would be unfortunate
because practicability is an important standard for evaluation of all accounts in practical ethics. In principle
guidelines can be progressively specified to the point of practicability, just as moral principles can (as
demonstrated in Chapter 1). In addition, constrained balancing (also analyzed in Chapter 1) will often have a
role in determining justifiable courses of action.

THE MORAL SIGNIFICANCE OF MORAL STATUS

Some writers challenge the need for the category of moral status. They argue that moral theory can and should
move directly to guidance about how individuals ought to be treated or to which moral virtues should be
enacted. Some philosophers argue that moral status accounts of the sort examined thus far offer a superficially
attractive but overly simplistic picture of how we “expand the circle of our concern” beyond autonomous adult
humans to human fetuses, brain-damaged humans, laboratory animals, and the like. They argue that such
theories blind us to the range of features that are morally relevant in decision making. If a creature has a property
such as sentience, this fact does not tell us how we should treat or otherwise respond to members of the class of
sentient beings; nor does it give us an account of moral priorities. Accordingly, we do not need the concept and
theory of moral status and would be better off without it.58

This account proposes that we attend to various morally relevant features of situations that give us reasons for
acting or abstaining from acting in regard to others that no theory of moral status is well equipped to address.
For example, we often make distinctions that lead us to justifiably give preferential treatment to either
individuals or classes of individuals, such as preferences to our children, our friends, our companion animals,
and the like. We have to sort through which preferences are justifiable and which not, but no general theory of
moral status suitably directs us in this task.

These cautions appropriately warn us about the limits of theories of moral status, but moral status remains a
matter of paramount moral importance and should be carefully analyzed, not ignored or downplayed. We take a
similar view about basic human rights in Chapter 9. It would be a catastrophic moral loss if we could not be
guided by basic norms of moral status and basic rights. Practices of slavery as well as abuses of human research

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subjects have thrived historically in part because of defective criteria of moral status and inattention to basic
rights connected to moral status. In too many places in recent decades, some children who were institutionalized
as “mentally infirm,” some elderly patients in chronic disease hospitals, and some racial groups were treated as
if they had little or no moral status by some of the finest centers of biomedical research in the world and by the
sponsors of such research.59 It is easy to forget how recognition of moral status can generate interest in and
support acknowledgment of vital moral protections.60

VULNERABLE POPULATIONS AND VULNERABLE INDIVIDUALS

Concern about moral status has often arisen from the need to protect vulnerable populations. Rules requiring
additional protections for certain populations are a foundation stone of both clinical ethics and research ethics.
These protections arose historically from concerns about exploitation and the inability of the members of some
groups to consent to or to refuse an intervention.61 Vulnerable persons in biomedical contexts are sometimes
incapable of protecting their interests because of sickness, debilitation, mental illness, immaturity, cognitive
impairment, and the like. They may be socioeconomically impoverished, which adds to the potential for harmful
outcomes. Populations such as homeless families, political refugees, and illegal aliens can also in some
circumstances be considered vulnerable.

However, the term vulnerable should be used with caution, because it also can function to stereotype or to
overprotect people in some populations.62

Guidelines for Vulnerable Populations

In controversies over uses of vulnerable populations in biomedical research, one of three general guidelines
might be applied to a research practice:

1. 1. Do not allow the practice (a policy of full prohibition).
2. 2. Allow the practice without regard to conditions (a policy of full permissibility).
3. 3. Allow the practice only under certain conditions (a policy of partial permissibility).

As an example, public opinion is deeply divided over which of these three guidelines should govern various uses
of human fetuses in research—in utero and after deliberate abortions. Many prefer the first, many the second,
and many the third. Divided opinions also mark debates about experimentation with animals, nontherapeutic
experimentation with children, and experimentation with incompetent individuals. Few today defend either full
prohibition or full permissibility of research involving these groups, but many would support a prohibition on
the use of some classes of these individuals in research, including the great apes and seriously ill children. To
reject the first two guidelines—as is common for some vulnerable populations—is to accept the third, which in
turn requires that we establish a reasonably precise set of moral protections that fix the conditions that allow us
to proceed or not to proceed with the members of a specified population.

Problems of moral coherence bedevil these issues. Near-universal agreement exists that humans who lack certain
capacities should not be used in biomedical research that carries significant risk and does not offer them a
prospect of direct benefit. Protections for these vulnerable populations should be at a high level because of their
vulnerability. Nonhuman animals are usually not treated equivalently, though the reasons for this differential
treatment are generally left unclear in public policy. Their limited cognitive and moral capacities have
traditionally provided part of the substantive justification for, rather than against, their use in biomedical
research when human subjects cannot ethically be used. Whether causing harm and premature death to these
animals can be justified, but not justified for humans with similarly limited capacities, is an unresolved issue in
biomedical ethics, and one that threatens coherence in moral theory.63

Practices of abortion, notably where human fetuses are capable of sentience, raise related issues of moral
coherence. The long and continuing struggle over abortion primarily concerns two questions: (1) What is the

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moral status of the fetus (at various developmental points)? (2) What should we do when the rights generated by
this status conflict with the rights of women to control their futures? Near-universal agreement exists that an
exceedingly late-term fetus is not relevantly different from a newborn. Another month earlier in development
will show little in the way of morally relevant differences, and incoherence threatens any point selected on the
continuum of growth as the marker of moral status. As with animal subjects, the status of human fetuses tends to
be downgraded because of their lack of sentient, cognitive, and moral capacities, and this deficiency then plays a
role in attempts to justify abortion. Questions about whether we can justify such downgrading and whether we
can justify causing premature death to the fetus remain among the most difficult questions in biomedical ethics.

Sympathy and Impartiality

Problems of moral status and vulnerable populations raise questions about our capacity to sympathize with the
predicament of others while maintaining appropriate impartiality in our judgments. In previous sections of this
chapter we connected our reflections on moral status to our discussion of moral norms in Chapter 1. We will
now connect our reflections to the account of moral character in Chapter 2. In particular, we focus on moral
sympathy as a trait similar to compassion and usually involving empathy.

The capacity for sympathy enables us to enter into, however imperfectly, the thoughts and feelings of another
individual or group. Through sympathy, we can form a concern for the other’s welfare. David Hume
discerningly argued that while most human beings have only a limited sympathy with the plight of others, they
also have some level of capacity to overcome these limits through calm, reflective judgments:

[T]he generosity of men is very limited, and … seldom extends beyond their friends and family, or,
at most, beyond their native country. … [T]ho’ [our] sympathy [for others] be much fainter than our
concern for ourselves, and a sympathy with persons remote from us much fainter than that with
persons near and contiguous; yet we neglect all these differences in our calm judgments concerning
the characters of men.64

After we attend to ourselves, our sympathy reaches out most naturally to our intimates, such as friends and
members of our family. From there sympathy can move on to a wider, but still relatively small, group of
acquaintances, such as those with whom we have the most frequent contact or in whose lives we have most
heavily invested. Our sympathy with those truly remote from us, such as strangers or persons in other nations, is
usually diminished by comparison to sympathy with those close to us, but it can be aroused by contact with
strangers and by calm judgments about their situations.

Both dissimilarity to and distance from other persons function to limit our sympathy. People in nursing homes
are often both dissimilar to and distant from other persons, as are individuals with diseases such as Lesch-
Nyhan, human embryos, and animals used in research. It is more difficult for many persons to view these
individuals as having a significant moral status that places demands on us and holds us accountable. Even
though we know that individuals in vulnerable populations suffer, our sympathy and moral responsiveness do
not come easily, especially when the individuals are hidden from our view or are of another species.

Not surprisingly, many persons among the “moral saints” and some of the “moral heroes” discussed in Chapter 2
exhibit an expanded and deeper sympathy with the plight of those who suffer. Their depth of sympathy is
beyond what most of us achieve or even hold as a moral ideal. By contrast, severely limited sympathy, together
with severely limited generosity, helps explain social phenomena such as child abuse, animal abuse, and the
neglect of enfeebled elderly persons in some nursing homes. It is regrettable that enlarged affections are not
commonplace in human interactions, but this fact is predictable given what we know about human nature.

Hume proposes to address such limited sympathy for those different from us by the deliberate exercise of
impartiality in our calm judgments: “It is necessary for us, in our calm judgments and discourse … to neglect all
these differences, and render our sentiments more public and social.”65 He asks us to reach out and seek a more
extensive sympathy. His proposals accord with our discussion in Chapter 2 of Aristotelian “moral excellence.” A
morally excellent person will work both to enlarge his or her sympathy for those who suffer and to reach calm

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and unbiased judgments. Hume characterizes this ideal as a “common” or “general” point of view in moral
judgment. This perspective, which some philosophers have called “the moral point of view,” controls for the
distortions and biases created by our closeness to some individuals, and opens us up to a more extensive
sympathy.66

This perspective could help in addressing several problems encountered in this chapter, but it would be
unreasonable to insist on a moral point of view that incorporates such a profoundly deep sympathy and extensive
impartiality that it applies equally across cultures, populations, geography, and species. Extensive sympathy is a
regulative, but arduous, ideal of conduct—as is the entire range of moral excellence examined in Chapter 2.
When consistently achieved across a lifetime, it is a morally beautiful adornment of character, however rare.

CONCLUSION

In this chapter the language of “theories,” “criteria,” “guidelines,” and “degrees” of moral status has dominated,
rather than the language of “principles,” “rules,” “virtues,” and “character” found in Chapters 1 and 2. These
forms of discourse and the territories they cover should be carefully distinguished, even though they are related
in various ways we have noted. For instance, the characteristics associated with moral status determine the kinds
of harms and benefits an individual or group can experience. These characteristics also help to determine which
moral principles apply and how they apply.

We have not argued that the common morality—as discussed in Chapters 1 and 2—gives us an adequate and
workable framework of criteria of moral status, and we have left several issues about moral status undecided.
There is justified uncertainty in arguments about the moral status of embryos, fetuses, brain-damaged humans,
and animals used in research—and about how to analyze the idea of degrees of moral status. Reasoned
disagreement is to be expected, but those who engage these issues need to be clear about the models they use
and their defense, subjects rarely found in the literature of bioethics. If the model accepts degrees of moral
status, that model needs to be stated with precision. If the model rejects degrees of moral status, that account,
too, needs a more penetrating analysis than is usually provided. The goal of developing tiers and hierarchies of
moral status is a demanding task, but its pursuit is essential in certain domains. We return to some of these
problems near the end of Chapter 10, where we discuss both the common morality and the possibility of “moral
change” in conceptions of moral status.

NOTES

1. 1. Cf. Mark H. Bernstein, On Moral Considerability: An Essay on Who Morally Matters (New York:
Oxford University Press, 1998).

2. 2. This conceptual thesis is indebted to David DeGrazia, “Moral Status as a Matter of Degree,” Southern
Journal of Philosophy 46 (2008): 181–98, esp. 183. See further Tom L. Beauchamp and David DeGrazia,
Principles of Animal Research Ethics (New York: Oxford University Press, 2019).

3. 3. For one examination of the broad range of issues involved in assessments of moral status, see the essays
in Is this Cell a Human Being? Exploring the Status of Embryos, Stem Cells and Human-Animal Hybrids,
ed. Antoine Suarez and Joachim Huarte (Germany: Springer, 2011).

4. 4. This history and its relevance for biomedical ethics are presented in Ronald A. Lindsay, “Slaves,
Embryos, and Nonhuman Animals: Moral Status and the Limitations of Common Morality Theory,”
Kennedy Institute of Ethics Journal 15 (December 2005): 323–46. On the history of problems about moral
status for nonhuman animals, see the four chapters by Stephen R. L. Clark, Aaron Garrett, Michael
Tooley, and Sarah Chan and John Harris in The Oxford Handbook of Animal Ethics, ed. Tom L.
Beauchamp and R. G. Frey (New York: Oxford University Press, 2011), chaps. 1–2, 11–12.

5. 5. D. J. Powner and I. M. Bernstein, “Extended Somatic Support for Pregnant Women after Brain Death,”
Critical Care Medicine 31 (2003): 1241–49; David R. Field et al., “Maternal Brain Death during
Pregnancy,” JAMA: Journal of the American Medical Association 260 (August 12, 1988): 816–22; and
Xavier Bosch, “Pregnancy of Brain-Dead Mother to Continue,” Lancet 354 (December 18–25, 1999):
2145.

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6. 6. See Hilde Lindemann Nelson, “The Architect and the Bee: Some Reflections on Postmortem
Pregnancy,” Bioethics 8 (1994): 247–67; Daniel Sperling, “From the Dead to the Unborn: Is There an
Ethical Duty to Save Life?” Medicine and Law Journal 23 (2004): 567–86; Christoph Anstotz, “Should a
Brain-Dead Pregnant Woman Carry Her Child to Full Term? The Case of the ‘Erlanger Baby,’” Bioethics
7 (1993): 340–50; and Neda Farshbaf, “Young Mother Kept Alive for 123 Days so Her Babies Could
Survive,” USA Today, July 11, 2017, available at
https://www.usatoday.com/story/news/humankind/2017/07/11/young-mother-kept-alive-123-days-so-her-
babies-could-survive/103615364/ (accessed April 1, 2018).

7. 7. Daniel Sperling, Management of Post-Mortem Pregnancy: Legal and Philosophical Aspects (Aldershot,
UK: Ashgate, 2006) (addressing questions of both the moral and the legal status of the fetus); and Sarah
Elliston, “Life after Death? Legal and Ethical Considerations of Maintaining Pregnancy in Brain-Dead
Women,” in Intersections: Women on Law, Medicine and Technology, ed. Kerry Petersen (Aldershot, UK:
Ashgate, 1997), pp. 145–65. Our discussion does not presume that dead persons have legally protected
interests and rights; we are focusing on a case in which the dead pregnant woman had an advance
directive requesting that all medical technology be withheld or withdrawn under conditions that included
her death.

8. 8. On this distinction, see Mary Midgley, “Duties Concerning Islands,” in Environmental Ethics, ed.
Robert Elliott (Oxford: Oxford University Press, 1995); Christopher W. Morris, “The Idea of Moral
Standing,” in Oxford Handbook of Animal Ethics (2011), pp. 261–62; and David Copp, “Animals,
Fundamental Moral Standing, and Speciesism,” in Oxford Handbook of Animal Ethics (2011), pp. 276–77.

9. 9. On why something counts “in its own right,” see Allen Buchanan, “Moral Status and Human
Enhancement,” Philosophy & Public Affairs 37 (2009): 346–81, esp. 346; Frances M. Kamm, “Moral
Status,” in Intricate Ethics: Rights, Responsibilities, and Permissible Harm (New York: Oxford University
Press, 2006), pp. 227–30; and L. Wayne Sumner, “A Third Way,” in The Problem of Abortion, 3rd ed., ed.
Susan Dwyer and Joel Feinberg (Belmont, CA: Wadsworth, 1997), p. 99. We thank Chris Morris for these
references.

10. 10. Robert P. George and Alfonso Gómez-Lobo, “The Moral Status of the Human Embryo,” Perspectives
in Biology and Medicine 48 (2005): 201–10, quotation spanning pp. 201–5.

11. 11. Cf. the Preamble and Articles in United Nations, Universal Declaration of Human Rights, available at
http://www.un.org/Overview/rights.html (accessed April 5, 2018).

12. 12. On September 7, 2001, V. Ourednik et al. published an article entitled “Segregation of Human Neural
Stem Cells in the Developing Primate Forebrain,” Science 293 (2001): 1820–24. This article is the first
report of the implanting of human neural stem cells into the brains of a primate, creating a monkey–human
chimera. The article stimulated interest in both biomedical ethics and biomedical sciences. See further
National Institutes of Health (NIH), Final “National Institutes of Health Guidelines for Human Stem Cell
Research” (2009). Available at https://stemcells.nih.gov/policy/2009-guidelines.htm (accessed April 5,
2018). These guidelines implement Executive Order 13505 issued on March 9, 2009, by then US
President Barack Obama.

13. 13. “Chimeric” usually refers to the cellular level, whereas “transgenic” concerns the genetic level. See
the argument in Mark K. Greene et al., “Moral Issues of Human–Non-Human Primate Neural Grafting,”
Science 309 (July 15, 2005): 385–86. See also the conclusions of Julian Savulescu, “Genetically Modified
Animals: Should There Be Limits to Engineering the Animal Kingdom?” in Oxford Handbook of Animal
Ethics (2011), esp. pp. 644–64; Jason Robert and Françoise Baylis, “Crossing Species Boundaries,”
American Journal of Bioethics 3 (2003): 1–13 (with commentaries); Henry T. Greely, “Defining Chimeras
… and Chimeric Concerns,” American Journal of Bioethics 3 (2003): 17–20; Robert Streiffer, “At the
Edge of Humanity: Human Stem Cells, Chimeras, and Moral Status,” Kennedy Institute of Ethics Journal
15 (2005): 347–70; and Phillip Karpowicz, Cynthia B. Cohen, and Derek van der Kooy1, “Is It Ethical to
Transplant Human Stem Cells into Nonhuman Embryos?” Nature Medicine 10 (2004): 331–35.

14. 14. Hiromitsu Nakauchi et al., “Generation of Rat Pancreas in Mouse by Interspecific Blastocyst Injection
of Pluripotent Stem Cells,” Cell 142 (2010): 787–99. The roles of rat and mouse were reversed (i.e.,
swapped) in later work by this team: see T. Yamaguchi, H. Sato, M. Kato-Itoh et al., “Interspecies
Organogenesis Generates Autologous Functional Islets,” Nature 542 (2017): 191–96.

15. 15. Jun Wu, Aida Platero-Luengo, Masahiro Sakurai, et al., “Interspecies Chimerism with Mammalian
Pluripotent Stem Cells,” Cell 168 (2017): 473–86.

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16. 16. National Institutes of Health (NIH), “NIH Research Involving Introduction of Human Pluripotent
Cells into Non-Human Vertebrate Animal Pre-Gastrulation Embryos,” Notice Number NOT-OD-15-158,
Release Date September 23, 2015, available at https://grants.nih.gov/grants/guide/notice-files/NOT-OD-
15-158.html (accessed March 25, 2018); and National Institutes of Health, Office of Science Policy, “Next
Steps on Research Using Animal Embryos Containing Human Cells,” August 4, 2016, available at
http://osp.od.nih.gov/under-the-poliscope/2016/08/next-steps-research-using-animal-embryos-containing-
human-cells (accessed April 1, 2018).

17. 17. See further Tom L. Beauchamp, “Moral Problems in the Quest for Human-Nonhuman Chimeras with
Human Organs,” Journal of Medical Ethics, forthcoming.

18. 18. One attractive view is that permitting the creation of animal–human hybrids for research purposes is
defensible, as long as they are destroyed within a specified period of time. See Henry T. Greely,
“Human/Nonhuman Chimeras: Assessing the Issues,” in Oxford Handbook of Animal Ethics (2011), pp.
671–72, 676, 684–86. However, a federal ban on their creation was recommended by the President’s
Council on Bioethics, Reproduction & Responsibility: The Regulation of New Biotechnologies
(Washington, DC: President’s Council on Bioethics, 2004), available at
http://bioethics.georgetown.edu/pcbe/ (accessed January 28, 2012). See also Scottish Council on Human
Bioethics, Embryonic, Fetal and Post-Natal Animal-Human Mixtures: An Ethical Discussion (Edinburgh,
UK: Scottish Council on Human Bioethics, 2010), “Animal-Human Mixtures” Publication Topic,
available at http://www.schb.org.uk/ (accessed April 1, 2018).

19. 19. National Research Council, National Academy of Science, Committee on Guidelines for Human
Embryonic Stem Cell Research, Guidelines for Human Embryonic Stem Cell Research (Washington, DC:
National Academies Press, 2005), with Amendments 2007 available online at
https://www.nap.edu/catalog/11871/2007-amendments-to-the-national-academies-guidelines-for-human-
embryonic-stem-cell-research; and Mark Greene, “On the Origin of Species Notions and Their Ethical
Limitations,” in Oxford Handbook of Animal Ethics (2011), pp. 577–602.

20. 20. The language of “person” has a long history in theology, especially in Christian theological efforts to
explicate the three individualities of the Trinity. On the potential of chimeras, see Greene et al., “Moral
Issues of Human–Nonhuman Primate Neural Grafting.”

21. 21. Julian Savulescu, “Should a Human-Pig Chimera Be Treated as a Person?” Quartz, Penned Pals,
March 24, 2017, available at https://qz.com/940841/should-a-human-pig-chimera-be-treated-as-a-person/
(accessed April 5, 2017). Italics added.

22. 22. Our objections do not apply to metaphysical accounts of the nature of persons that have nothing to do
with moral status. In the metaphysical literature, see Derek Parfit, “Persons, Bodies, and Human Beings,”
in Contemporary Debates in Metaphysics, ed. Theodore Sider, John Hawthorne, and Dean W. Zimmerman
(Oxford: Blackwell, 2008), pp. 177–208; and Paul F. Snowdon, Persons, Animals, Ourselves (Oxford:
Oxford University Press, 2014).

23. 23. See further Tom L. Beauchamp, “The Failure of Theories of Personhood,” Kennedy Institute of Ethics
Journal 9 (1999): 309–24; and Lisa Bartolotti, “Disputes over Moral Status: Philosophy and Science in
the Future of Bioethics,” Health Care Analysis 15 (2007): 153–58, esp. 155–57.

24. 24. At least one adherent of the first theory reaches precisely this conclusion. See Patrick Lee,
“Personhood, the Moral Standing of the Unborn, and Abortion,” Linacre Quarterly (May 1990): 80–89,
esp. 87; and Lee, “Soul, Body and Personhood,” American Journal of Jurisprudence 49 (2004): 87–125.

25. 25. For a variety of accounts see Michael Tooley, “Are Nonhuman Animals Persons?” in Oxford
Handbook of Animal Ethics (2011), pp. 332–73; Harry G. Frankfurt, Necessity, Volition, and Love
(Cambridge: Cambridge University Press, 1999), chaps. 9, 11; Mary Anne Warren, Moral Status (Oxford:
Oxford University Press, 1997), chap. 1; H. Tristram Engelhardt, Jr., The Foundations of Bioethics, 2nd
ed. (New York: Oxford University Press, 1996), chaps. 4, 6; and Lynne Rudder Baker, Persons and Bodies
(Cambridge: Cambridge University Press, 2000), chaps. 4, 6.

26. 26. Korsgaard, “Kant’s Formula of Humanity,” in Creating the Kingdom of Ends (Cambridge: Cambridge
University Press, 1996), pp. 110–11. See further her “Interacting with Animals: A Kantian Account,” in
Oxford Handbook of Animal Ethics (2011), pp. 91–118, esp. p. 103.

27. 27. See Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, updated ed.
2004), pp. 178, 182–84.

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28. 28. How this conclusion should be developed is debatable. It would be wrong to treat a late-stage
Alzheimer patient in the way biomedical researchers often treat experimental animals, but it can be argued
that we should treat primate research subjects with the same care taken in treating late-stage Alzheimer
patients.

29. 29. See Korsgaard’s assessment of what animals lack in “Interacting with Animals: A Kantian Account,”
p. 101.

30. 30. Colin Allen and Marc Bekoff, Species of Mind: The Philosophy and Biology of Cognitive Ethology
(Cambridge, MA: MIT Press, 1997); and Colin Allen, “Assessing Animal Cognition: Ethological and
Philosophical Perspectives,” Journal of Animal Science 76 (1998): 42–47.

31. 31. See Donald R. Griffin, Animal Minds: Beyond Cognition to Consciousness, 2nd ed. (Chicago:
University of Chicago Press, 2001); Rosemary Rodd, Ethics, Biology, and Animals (Oxford: Clarendon,
1990), esp. chaps. 3–4, 10; and Tom L. Beauchamp and Victoria Wobber, “Autonomy in Chimpanzees,”
Theoretical Medicine and Bioethics 35 (April 2014): 117–32.

32. 32. Cf. Gordon G. Gallup, “Self-Recognition in Primates,” American Psychologist 32 (1977): 329–38; and
David DeGrazia, Taking Animals Seriously: Mental Life and Moral Status (New York: Cambridge
University Press, 1996), esp. p. 302.

33. 33. A full account of these criteria would require explication in terms of some of the cognitive conditions
discussed previously. For example, the capacity to make moral judgments requires a certain level of the
capacity for understanding.

34. 34. Kant, Grounding for the Metaphysics of Morals, trans. James W. Ellington, in Kant, Ethical
Philosophy (Indianapolis, IN: Hackett, 1983), pp. 38–41, 43–44 (Preussische Akademie, pp. 432, 435,
436, 439–40).

35. 35. Examples of such theories—focused on the claim that there is sufficient evidence to count some
nonhuman animals as moral agents, possibly persons, and therefore as members of the moral community
—are Marc Bekoff and Jessica Pierce, Wild Justice: The Moral Lives of Animals (Chicago: University of
Chicago Press, 2009); Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (Boston: Da
Capo Press of Perseus Books, 2014, updated ed.); Michael Bradie, “The Moral Life of Animals,” in
Oxford Handbook of Animal Ethics (2011), pp. 547–73, esp. pp. 555–70; and Tom Regan, The Case for
Animal Rights, esp. pp. 151–56.

36. 36. See Colin Allen and Michael Trestman, “Animal Consciousness,” Stanford Encyclopedia of
Philosophy, substantive revision of October 24, 2016, especially sections 6–7, available at
https://plato.stanford.edu/entries/consciousness-animal/ (accessed June 12, 2018); and David Edelman,
Bernard Baars, and Anil Seth, “Identifying Hallmarks of Consciousness in Non-Mammalian Species,”
Consciousness and Cognition 14 (2005): 169–87.

37. 37. The terms pain and suffering are frequently used interchangeably, but they should be distinguished on
grounds that suffering may require more cognitive ability than the mere experience of pain. Suffering may
occur from aversive or harmful states such as misery that are not attended by pain. For a close analysis of
suffering and related notions, see David DeGrazia, “What Is Suffering and What Kinds of Beings Can
Suffer?” in Suffering and Bioethics, ed. Ronald Green and Nathan Palpant (New York: Oxford University
Press, 2014): 134–53. See also Robert Elwood, “Pain and Suffering in Invertebrates?” ILAR Journal 52
(2011): 175–84; Tom L. Beauchamp and David B. Morton, “The Upper Limits of Pain and Suffering in
Animal Research: A Moral Assessment of The European Union’s Legislative Framework,” Cambridge
Quarterly of Healthcare Ethics 24 (October 2015): 431–47; and David DeGrazia and Tom L. Beauchamp
“Moving Beyond the Three Rs,” ILAR Journal 61 (Fall 2019).

38. 38. Some defenders also seem to claim that this capacity is both necessary and sufficient for moral status
—a more difficult claim to support. See two opposed theories on this issue in L. Wayne Sumner, Abortion
and Moral Theory (Princeton, NJ: Princeton University Press, 1981); and Bonnie Steinbock, Life before
Birth: The Moral and Legal Status of Embryos and Fetuses, 2nd ed. (New York: Oxford University Press,
2011).

39. 39. Baruch Brody, Abortion and the Sanctity of Life (Cambridge, MA: MIT Press, 1975). Brain birth is
said to be analogous to brain death at critical transition points.

40. 40. This point is made in Stephen Griffith, “Fetal Death, Fetal Pain, and the Moral Standing of a Fetus,”
Public Affairs Quarterly 9 (1995): 117.

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41. 41. Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A.
Hart; with a new introduction by F. Rosen; and an interpretive essay by Hart (Oxford: Clarendon Press,
1996), p. 283.

42. 42. See, for example, Peter Singer, Animal Liberation, 2nd ed. (London: Pimlico, 1995), p. 8; and Sumner,
Abortion and Moral Theory.

43. 43. See R. G. Frey, “Moral Standing, the Value of Lives, and Speciesism,” Between the Species 4
(Summer 1988): 191–201; “Animals,” in The Oxford Handbook of Practical Ethics (New York: Oxford
University Press, 2003), esp. pp. 163, 178; and his “Autonomy and the Value of Animal Life,” Monist 70
(January 1987): 50–63. A somewhat similar, but differently grounded, theory appears in Martha
Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Harvard
University Press, 2006), especially p. 361.

44. 44. For relevant theoretical literature, see Ronald M. Green, “Determining Moral Status,” American
Journal of Bioethics 2 (Winter 2002): 20–30; and Diane Jeske, “Special Obligations,” Stanford
Encyclopedia of Philosophy (Spring 2014 Edition), ed. Edward N. Zalta, available at
https://plato.stanford.edu/archives/spr2014/entries/special-obligations/ (accessed March 28, 2018). For a
compelling account of how bonding can occur with animal research subjects and its moral importance, see
John P. Gluck, Voracious Science and Vulnerable Animals: A Primate Scientist’s Ethical Journey
(Chicago: University of Chicago Press, 2016); and see also Lily-Marlene Russow, “Ethical Implications of
the Human-Animal Bond in the Laboratory,” ILAR Journal 43 (2002): 33–37.

45. 45. Carson Strong and Garland Anderson, “The Moral Status of the Near-Term Fetus,” Journal of Medical
Ethics 15 (1989): 25–26.

46. 46. See the related conclusion in Nancy Jecker, “The Moral Status of Patients Who Are Not Strict
Persons,” Journal of Clinical Ethics 1 (1990): 35–38.

47. 47. For a broader set of patients than this list suggests—especially countless terminally ill patients—see
Felicia Cohn and Joanne Lynn, “Vulnerable People: Practical Rejoinders to Claims in Favor of Assisted
Suicide,” in The Case against Assisted Suicide: For the Right to End-of-Life Care, ed. Kathleen Foley and
Herbert Hendin (Baltimore: Johns Hopkins University Press, 2002), pp. 238–60.

48. 48. An influential general strategy of melding diverse theories is proposed in Warren, Moral Status,
though her set of melded theories differs from ours. A similar strategy, with a different set of melded
theories, appears in Lawrence J. Nelson and Michael J. Meyer, “Confronting Deep Moral Disagreements:
The President’s Council on Bioethics, Moral Status, and Human Embryos,” American Journal of Bioethics
5 (2005): 33–42 (with a response to critics, pp. W14–16).

49. 49. The problem of equal and unequal consideration of interests, and different degrees of consideration, is
discussed in DeGrazia, “Moral Status as a Matter of Degree,” esp. pp. 188, 191.

50. 50. [Mary Warnock], Report of the Committee of Inquiry into Human Fertilisation and Embryology:
Presented to Parliament (London: HMSO, July 1984). [The Warnock Committee Report.]

51. 51. Chief Medical Officer’s Expert Group, Stem Cell Research: Medical Progress with Responsibility
(London: Department of Health, 2000).

52. 52. Chief Medical Officer’s Expert Group, Stem Cell Research, sects. 4.6, 4.12, pp. 38–39.
53. 53. See David DeGrazia, “Great Apes, Dolphins, and the Concept of Personhood,” Southern Journal of

Philosophy 35 (1997): 301–20; and Beauchamp, “The Failure of Theories of Personhood.”
54. 54. For an all-or-nothing account that rejects degrees of moral status, see Elizabeth Harman, “The

Potentiality Problem,” Philosophical Studies 114 (2003): 173–98.
55. 55. Carson Strong, “The Moral Status of Preembryos, Embryos, Fetuses, and Infants,” Journal of

Medicine and Philosophy 22 (1997): 457–78.
56. 56. Cf. the similar conclusion, with an argued defense, in Mary Anne Warren, “Moral Status,” in A

Companion to Applied Ethics, ed. R. G. Frey and Christopher Wellman (Oxford: Blackwell, 2003), p. 163.
See further Elizabeth Harman, “Creation Ethics: The Moral Status of Early Fetuses and the Ethics of
Abortion,” Philosophy & Public Affairs 28 (1999): 310–324.

57. 57. For related, yet different, objections to this account, see Rebecca L. Walker, “Beyond Primates:
Research Protections and Animal Moral Value,” Hastings Center Report 46 (2016): 28–30.

58. 58. See Mary Midgley, Animals and Why They Matter (Athens: University of Georgia Press, 1983), pp.
28–30, 100; Rosalind Hursthouse, “Virtue Ethics and the Treatment of Animals,” in Oxford Handbook of

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Animal Ethics (2011), chap. 4; and Hursthouse, Ethics, Humans and Other Animals (London: Routledge,
2000), pp. 127–32.

59. 59. Classic cases in the United States are the Tuskegee syphilis experiment, the use of children with
intellectual disabilities at the Willowbrook State School, and the injection of cancer cells into debilitated
patients at the Jewish Chronic Disease Hospital in Brooklyn. For the first, see James H. Jones, Bad Blood:
The Tuskegee Syphilis Experiment, rev. ed. (New York: Free Press, 1993), and Susan Reverby, ed.,
Tuskegee’s Truths: Rethinking the Tuskegee Syphilis Study (Chapel Hill: University of North Carolina
Press, 2000). For the others, see Jay Katz et al., eds., Experimentation with Human Beings: The Authority
of the Investigator, Subject, Professions, and State in the Human Experimentation Process (New York:
Russell Sage Foundation, 1972); and National Commission for the Protection of Human Subjects of
Biomedical and Behavioral Research, Research Involving Those Institutionalized as Mentally Infirm
(Washington: Department of Health, Education, and Welfare [DHEW], 1978).

60. 60. Parallel debates in environmental ethics focus on the moral status of dimensions of nature beyond
human and nonhuman animals; for example, whether individual trees, plants, species, and ecosystems
have moral status. See Paul Taylor, Respect for Nature: A Theory of Environmental Ethics (Princeton, NJ:
Princeton University Press, 2011); Gary Varner, “Environmental Ethics, Hunting, and the Place of
Animals,” Oxford Handbook of Animal Ethics (2011), pp. 855–76; Andrew Brennan and Y. S. Lo,
Understanding Environmental Philosophy (New York: Routledge, 2014); Lawrence E. Johnson, A Morally
Deep World: An Essay on Moral Significance and Environmental Ethics (Cambridge: Cambridge
University Press, 1993); Agnieszka Jaworska and Julie Tannenbaum, “The Grounds of Moral Status,”
Stanford Encyclopedia of Philosophy (revision of January 10, 2018), available at
https://plato.stanford.edu/entries/grounds-moral-status/ (accessed March 19, 2018); and Alasdair
Cochrane, “Environmental Ethics,” section 1 (“Moral Standing”), Internet Encyclopedia of Philosophy,
available at https://www.iep.utm.edu/envi-eth/ (accessed March 19, 2018).

61. 61. National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research,
The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research
(Washington, DC: DHEW Publication OS 78–0012, 1978); Code of Federal Regulations, Title 45 (Public
Welfare), Part 46 (Protection of Human Subjects),
http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html (accessed July 15, 2011).

62. 62. On analysis of vulnerability, see Kenneth Kipnis, “Vulnerability in Research Subjects: A Bioethical
Taxonomy,” in National Bioethics Advisory Commission (NBAC), Ethical and Policy Issues in Research
Involving Human Participants, vol. 2 (Bethesda, MD: NBAC, 2001), pp. G-1–13.

63. 63. See Rebecca L. Walker, “Human and Animal Subjects of Research: The Moral Significance of
Respect versus Welfare,” Theoretical Medicine and Bioethics 27 (2006): 305–31. A major document that
illustrates the problem is an Institute of Medicine (now National Academy of Medicine) report:
Committee on the Use of Chimpanzees in Biomedical and Behavioral Research, Chimpanzees in
Biomedical and Behavioral Research: Assessing the Necessity (Washington, DC: National Academies
Press, 2011), available at https://www.nap.edu/catalog/13257/chimpanzees-in-biomedical-and-behavioral-
research-assessing-the-necessity (retrieved August 16, 2017). See also National Institutes of Health, Office
of the Director, “Statement by NIH Director Dr. Francis Collins on the Institute of Medicine Report
Addressing the Scientific Need for the Use of Chimpanzees in Research,” Thursday, December 15, 2011,
available at http://www.nih.gov/news/health/dec2011/od-15.htm (accessed December 15, 2011); and the
follow-up report, Council of Councils, National Institutes of Health. Council of Councils Working Group
on the Use of Chimpanzees in NIH-Supported Research: Report, 2013, available at
https://dpcpsi.nih.gov/council/pdf/FNL_Report_WG_Chimpanzees.pdf (accessed August 16, 2017);
National Institutes of Health, Announcement of Agency Decision: Recommendations on the Use of
Chimpanzees in NIH-Supported Research, available at
dpcpsi.nih.gov/council/pdf/NIHresponse_to_Council_of_Councils_recommendations_62513.pdf
(accessed July 28, 2013).

64. 64. Hume, A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford: Oxford
University Press, 2006), 3.3.3.2.

65. 65. Hume, An Enquiry Concerning the Principles of Morals, ed. Tom L. Beauchamp (Oxford: Oxford
University Press, 1998), 5.42.

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66. 66. We here concentrate on the role impartiality plays in expanding sympathy, but impartiality also can
help correct misdirected and exaggerated sympathy that borders on sentimentality. For a critique of a kind
of sentimentality that stands opposed to potentially effective measures to obtain transplantable organs
from brain-dead individuals, see Joel Feinberg, “The Mistreatment of Dead Bodies,” Hastings Center
Report 15 (February 1985): 31–37.

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4

Respect for Autonomy

The principle of respect for the autonomous choices of persons runs as deep in morality as any principle, but
determining its nature, scope, and strength requires careful analysis. We explore the concept of autonomy and
the principle of respect for autonomy in this chapter primarily to examine patients’, subjects’, and surrogates’
decision making in health care and research.1

We begin our analysis of a framework of four principles of biomedical ethics with this principle of respect, but
the order of our chapters does not imply that this principle has moral priority over, or a more foundational status
than, other principles. Not only do we hold that the principle of respect for autonomy lacks priority over the
other principles, but we maintain that it is not excessively individualistic to the neglect of the social nature of
individuals, not excessively focused on reason to the neglect of the emotions, and not unduly legalistic by
highlighting legal rights while downplaying social practices.

THE CONCEPT OF AUTONOMY AND THE PRINCIPLE OF RESPECT FOR
AUTONOMY

The word autonomy, derived from the Greek autos (“self”) and nomos (“rule,” “governance,” or “law”),
originally referred to the self-rule or self-governance of independent city-states. Autonomy has since been
extended to individuals. The autonomous individual acts freely in accordance with a self-chosen plan, analogous
to the way an autonomous government manages its territories and sets its policies. In contrast, a person of
diminished autonomy is substantially controlled by others or incapable of deliberating or acting on the basis of
his or her desires and plans. For example, cognitively impaired individuals and prisoners often have diminished
autonomy. Mental incapacitation limits the autonomy of a person with a severe mental handicap, and
incarceration constrains a prisoner’s autonomy.

Two general conditions are essential for autonomy: liberty (independence from controlling influences) and
agency (capacity for intentional action). However, disagreement exists over the precise meaning of these two
conditions and over whether additional conditions are required for autonomy.2 As our first order of business, we
use these basic conditions to construct a theory of autonomy that we believe suitable for biomedical ethics.

Theories of Autonomy

Some theories of autonomy feature the abilities, skills, or traits of the autonomous person, which include
capacities of self-governance such as understanding, reasoning, deliberating, managing, and independent
choosing.3 Our focus in this chapter on decision making leads us to concentrate on autonomous choice rather
than general capacities for self-governance and self-management. Even autonomous persons who have self-
governing capacities, and generally manage their health well, sometimes fail to govern themselves in particular
choices because of temporary constraints caused by illness, depression, ignorance, coercion, or other conditions
that limit their judgment or their options.

An autonomous person who signs a consent form for a procedure without reading or understanding the form has
the capacity to act autonomously but fails to so act in this circumstance. Depending on the context, we might be
able to correctly describe the act as that of placing trust in one’s physician and therefore as an act that
autonomously authorizes the physician to proceed. However, even if this claim is accurate, the act is not an
autonomous authorization of the procedure because this person lacks material information about the procedure.
Similarly, some persons who are generally incapable of autonomous decision making can at times make
autonomous choices. For example, some patients in mental institutions who cannot care for themselves and have

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been declared legally incompetent may still be competent to make some autonomous choices, such as stating
preferences for meals, refusing some medications, and making phone calls to acquaintances.

Split-level theories of autonomy. Some philosophers have presented an influential theory of autonomy that
requires having the capacity to reflectively control and identify with or oppose one’s basic (first-order) desires or
preferences through higher level (second-order) desires or preferences.4 Gerald Dworkin, for instance, offers a
“content-free” definition of autonomy as a “second-order capacity of persons to reflect critically upon their first-
order preferences, desires, wishes, and so forth and the capacity to accept or attempt to change these in the light
of higher-order preferences and values.”5 An example is an alcoholic who has a desire to drink but also has a
higher-order desire to stop drinking. A second example is an exceptionally dedicated physician who has a first-
order desire to work extraordinarily long hours in the hospital while also having a higher-order commitment to
spend all of her evening hours with her family. Whenever she wants to work late in the evening and does so, she
wants what she does not autonomously want, and therefore acts nonautonomously. Action from a first-order
desire that is not endorsed by a second-order volition is not autonomous and represents “animal” behavior.
Accordingly, in this theory an autonomous person is one who has the capacity to reflectively accept, identify
with, or repudiate a lower-order desire independent of others’ manipulations of that desire. This higher-order
capacity to accept or repudiate first-order preferences constitutes autonomy, and no person is autonomous
without this capacity.

This theory is problematic because nothing prevents a reflective acceptance, preference, or volition at the second
level from being caused by a strong first-order desire. That is, the individual’s second-level acceptance of a first-
order desire may be the causal result of an already formed structure of first-order preferences. Potent first-order
desires from a condition such as alcohol or opioid addiction are antithetical to autonomy and can cause second-
order desires. If second-order desires (decisions, volitions, etc.) are generated by first-order desires, then the
process of identifying with one desire rather than another does not distinguish autonomy from nonautonomy.

This theory needs more than a convincing account of second-order preferences and acceptable influences. It
needs a way for ordinary persons to qualify as deserving respect for their autonomous choices even when they
have not reflected on their preferences at a higher level. The theory also risks running afoul of the criterion of
coherence with the principle of respect for autonomy discussed throughout this chapter. If reflective
identification with one’s second-order desires or volitions is a necessary condition of autonomous action, then
many ordinary actions that are almost universally considered autonomous, such as cheating on one’s spouse
(when one truly wishes not to be such a person) or selecting tasty snack foods when grocery shopping (when one
has never reflected on one’s desires for snack foods), would be nonautonomous in this theory. A theory that
requires reflective identification and stable volitional patterns unduly narrows the scope of actions protected by
the principle of respect for autonomy.

Agnieszka Jaworska insightfully argues that choosing contrary to one’s professed, accepted, and stable values
need not constitute an abandonment of autonomy. For example, a patient might request a highly invasive
treatment at the end of life against his previous convictions about his best interests because he has come to a
conclusion that surprises him: He cares more about living a few extra days than he had thought he would.
Despite his long-standing and firm view that he would reject such invasive treatments, he now accepts them.
Jaworska’s example is common in medical contexts.6

Few decision makers and few choices would be autonomous if held to the standards of higher-order reflection
demanded by this split-level theory. It presents an aspirational ideal of autonomy rather than a theory of
autonomy suitable for decision making in health care and research. A theory should not be inconsistent with
pretheoretical assumptions implicit in the principle of respect for autonomy, and no theory of autonomy is
acceptable if it presents an ideal beyond the reach of competent choosers.

Our three-condition theory. Instead of an ideal theory of autonomy, our analysis focuses on nonideal conditions.
We analyze autonomous action in terms of normal choosers who act (1) intentionally, (2) with understanding,
and (3) without controlling influences that determine their action. This uncomplicated account is designed to be

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coherent with the premise that the everyday choices of generally competent persons are autonomous and to be
sufficient as an account of autonomy for biomedical ethics.

1. 1. Intentionality. Intentional actions require plans in the form of representations of the series of events
proposed for the execution of an action. For an act to be intentional it must correspond to the actor’s
conception of the act in question, although a planned outcome might not materialize as projected.7
Nothing about intentional acts rules out actions that an agent wishes he or she did not have to perform.
Our motivation often involves conflicting wants and desires, but this fact does not render an action less
than intentional or autonomous. Foreseen but undesired outcomes can be part of a coherent plan of
intentional action.

2. 2. Understanding. Understanding is the second condition of autonomous action. An action is not
autonomous if the actor does not adequately understand it. Conditions that limit understanding include
illness, irrationality, and immaturity. Deficiencies in a communication process also can hamper
understanding. An autonomous action needs only a substantial degree of understanding, not a full
understanding. To restrict adequate decision making by patients and research subjects to the ideal of fully
or completely autonomous decision making strips their acts of a meaningful place in the practical world,
where people’s actions are rarely, if ever, fully autonomous.

3. 3. Noncontrol. The third of the three conditions of autonomous action is that a person be free of controls
exerted either by external sources or by internal states that rob the person of self-directedness. Influence
and resistance to influence are basic concepts in this analysis. Not all influences exerted on another person
are controlling. Our analysis of noncontrol and voluntariness later in this chapter focuses on coercion and
manipulation as key categories of influence. We concentrate on external controlling influences—usually
influences of one person on another—but no less important to autonomy are internal influences on the
person, such as those caused by mental illness.

The first of the three conditions of autonomy—intentionality—is not a matter of degree: Acts are either
intentional or nonintentional. However, acts can satisfy the conditions of both understanding and absence of
controlling influence to a greater or lesser extent. For example, understanding can be more or less complete;
threats can be more or less severe; and mental illness can be more or less controlling. Children provide a good
example of the continuum from being in control to not being in control. In the early months of life children are
heavily controlled and display only limited ability to exercise control: They exhibit different degrees of
resistance to influence as they mature, and their capacity to take control and perform intentional actions, as well
as to understand, gradually increases.

Acts therefore can be autonomous by degrees, as a function of satisfying these two conditions of understanding
and voluntariness to different degrees. A continuum of both understanding and noncontrol runs from full
understanding and being entirely in control to total absence of relevant understanding and being fully controlled.
Cutoff points on these continua are required for the classification of an action as either autonomous or
nonautonomous. The lines between adequate and inadequate degrees of understanding and degrees of control
must be determined in light of specific objectives of decision making in a particular context such as deciding
about surgery, choosing a university to attend, and hiring a new employee.

Although the line between what is substantial and what is insubstantial may appear arbitrary, thresholds marking
substantially autonomous decisions can be appropriately set in light of specific objectives of decision making.
Patients and research subjects can achieve substantial autonomy in their decisions, just as substantially
autonomous choice occurs in other areas of life, such as selecting a diet. We need to formulate specific criteria
for substantial autonomy in particular contexts.

Autonomy, Authority, Community, and Relationships

Some theorists argue that autonomous action is incompatible with the authority of governments, religious
organizations, and other communities that prescribe behavior. They maintain that autonomous persons must act
on their own reasons and cannot submit to an authority or choose to be ruled by others without relinquishing
their autonomy.8 However, no fundamental inconsistency exists between autonomy and authority if individuals

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exercise their autonomy to choose to accept an institution, tradition, or community that they view as a legitimate
source of influence and direction.

Choosing to strictly follow the recommendations of a medical authority is a prime example. Other examples are
a Jehovah’s Witness who accepts the authority of that tradition and refuses a recommended blood transfusion or
a Roman Catholic who chooses against an abortion in deference to the authority of the church. That persons
share moral norms with authoritative institutions does not prevent these norms from being autonomously
accepted, even if the norms derive from traditions or from institutional authority. If a Jehovah’s Witness who
insists on adhering to the doctrines of his faith in refusing a blood transfusion is deemed nonautonomous on the
basis of his religious convictions, many of our choices based on our confidence in institutional authority will be
likewise deemed unworthy of respect. A theory of autonomy that makes such a demand is morally unacceptable.

We encounter many limitations of autonomous choice in medical contexts because of the patient’s dependent
condition and the medical professional’s authoritative position. On some occasions authority and autonomy are
not compatible, but this is not because the two concepts are incompatible. Conflict may arise because authority
has not been properly presented or accepted, as in certain forms of medical paternalism or when an undue
influence has been exerted.

Some critics of autonomy’s prominent role in biomedical ethics question what they deem to be a model of an
independent, rational will inattentive to emotions, communal life, social context, interdependence, reciprocity,
and the development of persons over time. They see such an account of autonomy as too narrowly focused on
the self as independent, atomistic, and rationally controlling. Some of these critics have sought to affirm
autonomy while interpreting it through relationships.9 This account of “relational autonomy” is motivated by the
conviction that persons’ identities and choices are generally shaped, for better or worse, through social
interactions and intersecting social determinants such as race, class, gender, ethnicity, and authority structures.10

We will address the challenges of relational autonomy through the ethical principles analyzed in Chapters 5
through 7. In our view, a relational conception of autonomy can be defensible if it does not neglect or obscure
the three conditions of autonomy we identified previously and will further analyze later in this chapter.

The Principle of Respect for Autonomy

To respect autonomous agents is to acknowledge their right to hold views, to make choices, and to take actions
based on their values and beliefs. Respect is shown through respectful action, not merely by a respectful
attitude. The principle of respect for autonomy requires more than noninterference in others’ personal affairs. In
some contexts it includes building up or maintaining others’ capacities for autonomous choice while helping to
allay fears and other conditions that destroy or disrupt autonomous action. Respect involves acknowledging the
value and decision-making rights of autonomous persons and enabling them to act autonomously, whereas
disrespect for autonomy involves attitudes and actions that ignore, insult, demean, or are inattentive to others’
rights of autonomous action.

The principle of respect for autonomy asserts a broad obligation that is free of exceptive clauses such as “We
must respect individuals’ views and rights except when their thoughts and actions seriously harm other persons.”
Exceptive conditions should appear in specifications of the principle, not in the principle itself. However, the
principle should be analyzed as containing both a negative obligation and a positive obligation. As a negative
obligation, the principle requires that autonomous actions not be subjected to controlling constraints by others.
As a positive obligation, the principle requires both respectful disclosures of information and other actions that
foster autonomous decision making. Respect for autonomy obligates professionals in health care and research
involving human subjects to disclose information, to probe for and ensure understanding and voluntariness, and
to foster adequate decision making. As some contemporary Kantians have appropriately pointed out, the moral
demand that we treat others as ends requires that we assist them in achieving their ends and foster their
capacities as agents, not merely that we avoid treating them solely as means to our ends.11

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These negative and positive sides of respect for autonomy support more specific moral rules, some of which
may also be justified, in part, by other moral principles discussed in this book. Examples of these rules include
the following:

1. 1. Tell the truth.
2. 2. Respect the privacy of others.
3. 3. Protect confidential information.
4. 4. Obtain consent for interventions with patients.
5. 5. When asked, help others make important decisions.

The principle of respect for autonomy and each of these rules has only prima facie standing, and competing
moral considerations sometimes override them. Examples include the following: If our autonomous choices
endanger the public health, potentially harm innocent others, or require a scarce resource for which no funds are
available, others can justifiably restrict our exercises of autonomy. The principle of respect for autonomy often
does not determine what, on balance, a person ought to be free to know or do or what counts as a valid
justification for constraining autonomy. For example, a patient with an inoperable, incurable carcinoma once
asked, “I don’t have cancer, do I?” The physician lied, saying, “You’re as good as you were ten years ago.” This
lie infringed the principle of respect for autonomy by denying the patient information he may have needed to
determine his future courses of action. Although the matter is controversial, such a lie might be justified by a
principle of beneficence if major benefits will flow to the patient. (For the justification of certain acts of
withholding the truth from patients, see our discussions of paternalism in Chapter 6 and veracity in Chapter 8.)

Obligations to respect autonomy do not extend to persons who cannot act in a sufficiently autonomous manner
and to those who cannot be rendered autonomous because they are immature, incapacitated, ignorant, coerced,
exploited, or the like. Infants, irrationally suicidal individuals, and drug-dependent patients are examples. This
standpoint does not presume that these individuals are not owed moral respect, often referred to as respect for
persons.12 In several of our chapters we show that these patients have a significant moral status (see Chapter 3)
that obligates us to protect them from harm-causing conditions and to supply medical benefits to them (see
Chapters 5–7).

The Alleged Triumph and Failure of Respect for Autonomy

Some writers lament the “triumph of autonomy” in American bioethics. They assert that autonomy’s proponents
sometimes disrespect patients by forcing them to make choices, even though many patients do not want to
receive information about their condition or to make decisions. Carl Schneider, for example, claims that stout
proponents of autonomy, whom he labels “autonomists,” concern themselves less with what patients do want
than with what they should want. He concludes that “while patients largely wish to be informed about their
medical circumstances, a substantial number of them [especially the elderly and the very sick] do not want to
make their own medical decisions, or perhaps even to participate in those decisions in any very significant
way.”13

A health professional’s duty of respect for autonomy correlates with the right of a patient or subject to choose,
but the patient or subject does not have a correlative duty to choose. Several empirical studies of the sort cited by
Schneider seem to misunderstand, as he does, how autonomous choice functions in a viable theory and how it
should function in clinical medicine. In one study, UCLA researchers examined the differences in the attitudes of
elderly subjects, sixty-five years old or older, from different ethnic backgrounds toward (1) disclosure of the
diagnosis and prognosis of a terminal illness, and (2) decision making at the end of life. The researchers
summarize their main findings, based on 800 subjects (200 from each ethnic group):

Korean Americans (47%) and Mexican Americans (65%) were significantly less likely than
European Americans (87%) and African Americans (88%) to believe that a patient should be told
the diagnosis of metastatic cancer. Korean Americans (35%) and Mexican Americans (48%) were
less likely than African Americans (63%) and European Americans (69%) to believe that a patient
should be told of a terminal prognosis and less likely to believe that the patient should make

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decisions about the use of life-supporting technology (28% and 41% vs. 60% and 65%). Korean
Americans and Mexican Americans tended to believe that the family should make decisions about
the use of life support.

Investigators in this study stress that “belief in the ideal of patient autonomy is far from universal” (italics
added), and they contrast this ideal with a “family-centered model” focused on an individual’s web of
relationships and “the harmonious functioning of the family.”14 Nevertheless, the investigators conclude that
“physicians should ask their patients if they wish to receive information and make decisions or if they prefer that
their families handle such matters.” Far from abandoning or supplanting the moral demand that we respect
individual autonomy, their recommendation accepts the normative position that the choice is rightly the patient’s
or a designated surrogate’s. Even if the patient delegates the right to someone else, his or her choice to delegate
can be autonomous.

In a second study, this time of Navajo values and the disclosure of risk and medical prognoses, two researchers
sought to determine how health care providers “should approach the discussion of negative information with
Navajo patients” to provide “more culturally appropriate medical care.” Frequent conflicts emerge, these
researchers report, between autonomy and the traditional Navajo conception that “thought and language have the
power to shape reality and to control events.” In the traditional conception, telling a Navajo patient recently
diagnosed with a disease the potential complications of that disease could actually produce those complications,
because “language does not merely describe reality, language shapes reality.” Traditional Navajo patients may
process negative information as dangerous to them. They expect instead a “positive ritual language” that
promotes or restores health.

One middle-aged Navajo nurse reported that a surgeon explained the risks of bypass surgery to her father in such
a way that he refused to undergo the procedure: “The surgeon told him that he may not wake up, that this is the
risk of every surgery. For the surgeon it was very routine, but the way that my Dad received it, it was almost like
a death sentence, and he never consented to the surgery.” The researchers therefore found ethically troublesome
policies that attempt to “expose all hospitalized Navajo patients to the idea, if not the practice, of advance care
planning.”15

These two studies enrich our understanding of diverse cultural beliefs and values. However, these studies
sometimes misrepresent what the principle of respect for autonomy and related laws and policies require. They
view their results as opposing rather than, as we interpret them, enriching the principle of respect for autonomy.
A fundamental obligation exists to ensure that patients have the right to choose as well as the right to accept or
decline information. Forced information and forced choice are usually inconsistent with this obligation.

A tension exists between the two studies just discussed. One study recommends inquiring in advance to ascertain
patients’ preferences about information and decision making, whereas the other suggests, tenuously, that even
informing certain patients of a right to decide may cause harm. The practical question is whether it is possible to
inform patients of their rights to know and to decide without compromising their systems of belief and values or
otherwise disrespecting them by forcing them to learn or choose when a better form of communication could
avoid this outcome. Health professionals should almost always inquire about their patients’ wishes to receive
information and to make decisions and should not assume that because a patient belongs to a particular
community or culture, he or she affirms that community’s customary worldview and values. The main
requirement is to respect a particular patient’s or subject’s autonomous choices, whatever they may be. Respect
for autonomy is no mere ideal in health care; it is a professional obligation.

Complexities in Respecting Autonomy

Varieties of autonomous consent. Consent often grants permission for others to act in ways that are unjustifiable
without consent—for instance, engaging in sexual relations or performing surgery. However, when examining
autonomy and consent in this chapter, we do not presume that consent is either necessary or sufficient for certain
interventions to be justified. It is not always necessary in emergencies, in public health interventions, in research
involving anonymized data, and so forth; and it is not always sufficient because other ethical principles too must

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be satisfied. For example, research involving human subjects must pass a benefit-risk test and a fairness test in
the recruitment of participants.16

The basic paradigm of the exercise of autonomy in health care and in research is express or explicit consent (or
refusal), usually informed consent (or refusal).17 However, the informed consent paradigm captures only one
form of valid consent. Consent may also be implied, tacit, or presumed; and it may be general or specific.

Implicit (or implied) consent is inferable from actions. Consent to a medical procedure may be implicit in a
specific consent to another procedure, and providing general consent to treatment in a teaching hospital may
imply consent to various roles for physicians, nurses, and others in training. Another form is tacit consent, which
occurs silently or passively through omissions. For example, if the staff of a long-term care facility asks
residents whether they object to having the time of dinner changed by one hour, a uniform lack of objection
constitutes consent.

Presumed consent is subject to a variety of interpretations. It is a form of implicit consent if consent is presumed
on the basis of what is known about a particular person’s choices. In certain contexts, presumed consent is tacit
consent that gives good grounds for accepting the consent as valid. By contrast, presuming consent on the basis
of either a theory of human goods that are desirable or what a rational person would accept is morally perilous.
Consent should refer to an individual’s actual choices or known preferences, not to presumptions about the
choices the individual would or should make.

Different conceptions of consent have appeared in debates about teaching medical students how to perform
intimate examinations, especially pelvic and rectal examinations.18 Medical students have often learned and
practiced on anesthetized patients, some of whom have not given an explicit informed consent. For instance,
some teaching hospitals have allowed one or two medical students to participate in the examination of women
who are under anesthesia in preparation for surgery. Anesthetized patients have been considered ideal for
teaching medical students how to perform a pelvic examination because these patients are relaxed and would not
feel any mistakes. When questioned about this practice, some directors of obstetrics and gynecology programs
appealed to the patient’s general consent upon entering a teaching hospital. This consent typically authorizes
medical students and residents to participate in patients’ care for teaching and learning purposes. However, the
procedures that involve participation by medical students or other medical trainees are often not explicitly stated.

There are good ethical reasons to find general consent insufficient and, instead, to require specific informed
consent for such intimate examinations performed for educational or training purposes. Health professionals
usually—and rightly—seek specific informed consent when a procedure is invasive, as in surgery, or when it is
risky. Although pelvic examinations are not invasive or risky by comparison to surgery, patients may object to
these intrusions into their bodies, especially for purposes of education and training. When asked, many women
consent to the participation of medical students in such examinations, but other women view the practice as a
violation of their dignity and privacy.19 One commentator appropriately maintains that “the patient must be
treated as the student’s teacher, not as a training tool.”20

Using anesthetized women who have given only a general consent may be efficient in clinical training, but, in
view of the importance of respect for autonomy, it is ethically required, instead, to use only anesthetized patients
who have given specific informed consent or healthy volunteers willing to serve as standardized patients. Both
alternatives respect personal autonomy, avoid an inappropriate form of medical education, and are workable.21

The practice of conducting pelvic exams on anesthetized patients without their specific informed consent also
may have a negative impact on clinicians’ attitudes toward the importance of informed consent and, by
implication, toward respect for autonomy. According to a study of medical students in the Philadelphia area, this
practice desensitized physicians to the need for patients to give their consent before these and presumably other
procedures. For students who had finished an obstetrics/gynecology clerkship, which involved this practice,
consent was significantly less important (51%) than for students who had not completed a clerkship (70%). The

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authors conclude that “to avoid this decline in attitudes toward seeking consent, clerkship directors should
ensure that students perform examinations only after patients have given consent explicitly.”22

Nonexpress forms of consent have been considered and sometimes adopted in different contexts. In late 2006,
the US Centers for Disease Control and Prevention (CDC) changed its recommendations about HIV testing and
screening for patients in health care settings in which various other diagnostic and screening tests are routinely
performed.23 (Here “diagnostic testing” refers to testing people with clinical signs or symptoms that could
indicate HIV infection, while “screening” refers to testing everyone in a certain population.) The policies then in
effect, and often embodied in state laws, require specific informed consent, usually in written form, for HIV
testing, frequently accompanied by pre-test and post-test counseling. These policies reflected public concerns
that had surrounded HIV testing from its beginning in 1985, particularly concerns about the psychosocial risks
of stigmatization and discrimination as a result of a positive test. Because of these concerns, testing for HIV was
treated differently than testing for other medical conditions, especially those with public health ramifications.
Hence, policies at the time required specific disclosure of information and a decision, expressed on a written
form, to accept or refuse testing.

The 2006 CDC recommendations moved away from specific written informed consent, accompanied by
counseling. In the health care context, the diagnostic testing of patients, in light of clinical signs or symptoms,
was justified under implicit consent to medical care, while the screening of all persons ages thirteen to sixty-
four, without clinical signs or symptoms of HIV infection, was justified if they were notified that the test would
be performed and then given the opportunity to decline. This shift indicated that HIV and AIDS would no longer
be treated as exceptions to conventional medical care and to conventional public health measures.24 The CDC
justified its new recommendations primarily on two grounds. First, because HIV and AIDS are chronic
conditions that can be effectively treated through anti-retroviral therapies (ARTs), although not cured in the
sense of totally and permanently eradicating the virus, the new screening approach would enable more people
who are infected to take advantage of available ARTs that could significantly extend their lives at a higher
quality. Second, the information gained from screening could enable persons who are infected with HIV to take
steps to protect their sex partners or drug-use partners from infection. The CDC estimated that in 2015 over 1.1
million people in the United States were HIV-infected and that one in seven, or approximately 157,000
individuals, were not aware of their infection.25 Studies after the 2006 recommendations established that treating
individuals to reduce their viral load (the concentration of HIV in blood) to undetectable levels can dramatically
reduce the risk of spreading HIV infection to sexual or drug-sharing partners.26 Hence, a slogan arose: “HIV
treatment as prevention.”27

The CDC’s changed recommendations did not eliminate patient autonomy in health care settings—individuals
could still refuse testing—but, by shifting the default from “opt in” to “opt out,” the CDC anticipated that more
people previously unaware of their HIV infection would be tested and would gain knowledge that could benefit
them and others. Despite these potential benefits, critics warned that in the absence of a requirement for explicit,
written informed consent, compromises of autonomy were inevitable in the “opt-out” policy. According to one
AIDS activist, “This is not informed consent, and it is not even consent, [but rather an attempt] to ram HIV
testing down people’s throats without their permission.”28

In our judgment, this “opt-out” approach, undertaken within CDC guidelines, was and remains justifiable as a
way to increase HIV testing without infringing personal autonomy. A strong consensus developed around this
approach: By early 2018, all states in the United States had changed their laws regarding HIV testing in medical
contexts from “opt-in,” through specific, written informed consent, to “opt out.”29

Another context in which an opt-out approach, sometimes called presumed or tacit consent, could be justified is
organ donation from deceased individuals. In the opt-in system in the United States, deceased organ donation
requires express, explicit consent, whether by an individual while alive or by the next of kin after his or her
death. The information disclosed for the individual’s consent is usually limited—for instance, in a cursory
exchange when obtaining a license to operate an automobile—but this disclosure is arguably adequate for
purposes of postmortem organ donation. In view of the huge gap between the number of organs donated each

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year and the number of patients awaiting a transplant, many propose that the United States adopt an opt-out
model for organ removal from deceased persons, as several European countries have done. This model shifts the
default so that an individual’s silence, or nonregistration of dissent, counts as consent, but is such a policy of
presumed or tacit consent ethically acceptable?

To be ethically justifiable, such a policy would require vigorous efforts to ensure the public’s understanding of
the options they face as individuals, as well as a clear, reliable, simple, and nonburdensome mechanism to use to
opt out. While accepted in many countries in Europe, an opt-out policy has not yet gained traction in the United
States, perhaps because of strong currents of rights of autonomous choice and distrust. Even if it were adopted in
the United States, it probably would not increase the number of organs for transplantation overall because,
according to survey data, too many citizens would opt out; and opting out would prevent postmortem familial
donations, which now provide a large number of transplantable organs when deceased persons have not
previously expressed their preferences.30

Consents and refusals over time. Beliefs and choices shift over time. Ethical and interpretive problems arise
when a person’s present choices contradict his or her previous choices, which, in some cases, he or she explicitly
designed to prevent possible future changes of mind from affecting an outcome. In one case, a twenty-eight-
year-old man decided to terminate chronic renal dialysis because of his restricted lifestyle and the burdens his
medical conditions imposed on his family. He had diabetes, was legally blind, and could not walk because of
progressive neuropathy. His wife and physician agreed to provide medication to relieve his pain and further
agreed not to return him to dialysis even if he requested it under the influence of pain or other bodily changes.
(Increased amounts of urea in the blood, which result from kidney failure, can sometimes lead to altered mental
states, for example.) While dying in the hospital, the patient awoke complaining of pain and asked to be put back
on dialysis. The patient’s wife and physician decided to act on the patient’s earlier request not to intervene, and
he died four hours later.31

Their decision was understandable, but respect for autonomy suggests that the spouse and physician should have
put the patient back on dialysis to flush the urea out of his bloodstream and then determine if he had
autonomously revoked his prior choice. If the patient later indicated that he had not revoked his prior choice, he
could have refused again, thereby providing the caregivers with increased assurance about his autonomous
preferences.

In shifts over time the key question is whether people are autonomously revoking their prior decisions.
Discerning whether current decisions are autonomous will depend, in part, on whether they are in character or
out of character. Out-of-character actions can raise caution flags that warn others to seek explanations and to
probe more deeply into whether the actions are autonomous, but they may turn out to be autonomous. Actions
are more likely to be substantially autonomous if they are in character—for example, when a committed
Jehovah’s Witness refuses a blood transfusion—but acting in character does not necessarily indicate an
autonomous action. How, then, are we to determine whether decisions and actions are autonomous?

THE CAPACITY FOR AUTONOMOUS CHOICE

Many patients and potential research subjects are not competent to give a valid consent or refusal. Inquiries
about competence focus on whether these persons are capable—cognitively, psychologically, and legally—of
adequate decision making. Several commentators distinguish judgments of capacity from judgments of
competence on the grounds that health professionals assess capacity and incapacity, whereas courts determine
competence and incompetence. However, this distinction breaks down in practice, and we will not rely on it.
When clinicians judge that patients lack decision-making capacity, the practical effects of these judgments in a
medical context may not differ significantly from those of a legal determination of incompetence.32

The Gatekeeping Function of Competence Judgments

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Competence or capacity judgments in health care serve a gatekeeping role by distinguishing persons whose
decisions should be solicited or accepted from persons whose decisions need not or should not be solicited or
accepted. Health professionals’ judgments of a person’s incompetence may lead them to override that person’s
decisions, to turn to informal or formal surrogates for decision making, to ask a court to appoint a guardian to
protect his or her interests, or to seek that person’s involuntary institutionalization. When a court establishes
legal incompetence, it appoints a surrogate decision maker with either partial or plenary (full) authority over the
incompetent individual.

Competence judgments have the distinctive normative function of qualifying or disqualifying persons for certain
decisions or actions, but those in control sometimes incorrectly present these competence judgments as
empirical. For example, a person who appears irrational or unreasonable to others might fail a psychiatric test,
and as a result be declared incompetent. The test is an empirical measuring device, but normative judgments
establish how the test should be used to sort persons into the two classes of competent and incompetent, which
determines how persons ought to be, or may permissibly be, treated.

The Concept of Competence

Some commentators hold that we lack both a single acceptable definition of competence and a single acceptable
standard of competence. They also contend that no nonarbitrary test exists to distinguish between competent and
incompetent persons. We will engage these issues by distinguishing between definitions, standards, and tests—
focusing first on problems of definition.33

A single core meaning of the word competence applies in all contexts. That meaning is “the ability to perform a
task.”34 By contrast to this core meaning, the criteria of particular competencies vary from context to context
because the criteria are relative to specific tasks. The criteria for someone’s competence to stand trial, to raise
dachshunds, to answer a physician’s questions, and to lecture to medical students are radically different. Rarely
should we judge a person as globally incompetent, that is, incompetent with respect to every sphere of life. We
usually need to consider only some type of competence, such as the competence to decide about treatment or
about participation in research. These judgments of competence and incompetence affect only a limited range of
decision making. A person incompetent to decide about financial affairs may be competent to decide whether to
participate in medical research.

Competence may vary over time and may be intermittent. Many persons are incompetent to do something at one
point in time but competent to perform the same task at another point in time. Judgments of competence about
such persons can be complicated by the need to distinguish categories of illness that result in chronic changes of
intellect, language, or memory from those characterized by rapid reversibility of these functions, as in the case
of transient ischemic attack (TIA) or transient global amnesia (TGA). In some of the latter cases competence
varies from hour to hour, and determination of a specific incompetence may prevent vague generalizations that
exclude these persons from all forms of decision making.

These conceptual distinctions have practical significance. The law has traditionally presumed that a person
incompetent to manage his or her estate is also incompetent to vote, make medical decisions, get married, and
the like. The global sweep of these laws, based on a total judgment of the person, at times has extended too far.
In a classic case, a physician argued that a patient was incompetent to make decisions because of epilepsy,35

although many persons who suffer from epilepsy are competent to make decisions in numerous contexts. Such
judgments defy much that we now know about the etiology of various forms of incompetence, even in hard
cases involving persons with cognitive disabilities, with psychosis, or with uncontrollably painful afflictions.
Persons who are incompetent by virtue of dementia, alcoholism, immaturity, or cognitive disabilities present
very different types and problems of incompetence.

Sometimes a competent person who ordinarily can select appropriate means to reach his or her goals will act
incompetently. Consider the following actual case of a hospitalized patient who has an acute disc problem and
whose goal is to control back pain. The patient has decided to manage the problem by wearing a brace, a method
she had used successfully in the past. She believes strongly that she should return to this treatment modality.

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This approach conflicts, however, with her physician’s unwavering and near-insistent advocacy of surgery.
When the physician, an eminent surgeon who alone in her city is suited to treat the patient, asks her to sign the
surgical permit, she is psychologically unable to refuse. Her illness increases both her hopes and her fears, and,
in addition, she has a deferential personality. In these circumstances, it is psychologically too risky for her to act
as she prefers. Even though she is competent to choose in general and has stated her preference, she is not
competent to choose on this occasion.

This case indicates how close the concept of competence in decision making is to the concept of both autonomy
and the principle of respect for autonomy. Patients or prospective subjects are competent to make a decision if
they have the capacity to understand the material information, to make a judgment about this information in light
of their values, to intend a certain outcome, and to communicate freely their wishes to caregivers or
investigators. Although autonomy and competence differ in meaning (autonomy meaning self-governance;
competence meaning the ability to perform a task or range of tasks), the criteria of the autonomous person and of
the competent person are strikingly similar.

Persons are more and less able to perform a specific task to the extent they possess a certain level or range of
abilities, just as persons are more and less intelligent or athletic. For example, in the emergency room an
experienced and knowledgeable patient is likely to be more qualified to consent to or refuse a procedure than a
frightened, inexperienced patient. It would be confusing to view this continuum of abilities in terms of degrees
of competency. For practical and policy reasons, we need threshold levels below which a person with a certain
level of abilities for a particular task is incompetent. Where we draw the line depends on the particular tasks
involved.36

Standards of Competence

Questions in medicine about competence often center on the standards for its determination, that is, the
conditions a judgment of competence—and especially incompetence—must satisfy. Standards of competence
feature mental skills or capacities closely connected to the attributes of autonomous persons, such as cognitive
skills and independent judgment. In criminal law, civil law, and clinical medicine, standards for competence
cluster around various abilities to comprehend and process information and to reason about the consequences of
one’s actions. In medical contexts, physicians often consider a person competent if he or she can understand a
procedure, deliberate with regard to its major risks and benefits, and make a decision in light of this deliberation.

The following case illustrates some difficulties encountered in attempts to judge competence. A man who
generally exhibits normal behavior patterns is involuntarily committed to a mental institution as the result of the
bizarre self-destructive behavior of pulling out an eye and cutting off a hand. This behavior results from his
unusual religious beliefs. The institution judges him incompetent, despite his generally competent behavior and
despite the fact that his peculiar actions coherently follow from his religious beliefs.37 This troublesome case is
not one of intermittent competence. Analysis in terms of limited competence at first appears plausible, but this
analysis perilously suggests that persons with unorthodox or bizarre religious beliefs are less than competent,
even if they reason coherently in light of their beliefs. This policy would not be ethically acceptable unless
specific and carefully formulated statements spelled out the reasons under which a finding of incompetence is
justified.

Rival standards of incompetence. We are focusing on standards of incompetence, rather than competence,
because of the legal, medical, and practical presumption that an adult is competent and should be treated as such
in the absence of a determination of incompetence or incapacity. In the clinical context, an inquiry into a
patient’s competence to make decisions usually occurs only when the medical decision at stake is complex and
involves significant risks or when the patient does not accept the physician’s recommendation.38 The following
schema expresses the range of inabilities required under competing standards of incompetence currently
presented in literature on the subject.39

1. 1. Inability to express or communicate a preference or choice

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2. 2. Inability to understand one’s situation and its consequences
3. 3. Inability to understand relevant information
4. 4. Inability to give a reason
5. 5. Inability to give a rational reason (although some supporting reasons may be given)
6. 6. Inability to give risk/benefit-related reasons (although some rational supporting reasons may be given)
7. 7. Inability to reach a reasonable decision (as judged, for example, by a reasonable person standard)

These standards cluster around three kinds of abilities or skills. Standard 1 looks for the ability to formulate a
preference, which is an elementary standard. Standards 2 and 3 probe for abilities to understand information and
to appreciate one’s situation. Standards 4 through 7 concentrate on the ability to reason through a consequential
life decision. These standards have been widely used, either alone or in combination, to determine incompetence
in medical contexts.

Testing for incompetence. A clinical need exists to turn one or more of these general standards into an
operational test of incompetence that establishes passing and failing evaluations. Dementia rating scales, mental
status exams, and similar devices test for factors such as time-and-place orientation, memory, understanding, and
coherence.40 Although these clinical assessments are empirical tests, normative judgments underlie each test.
The following three ingredients incorporate normative judgments:41

1. 1. Choosing the relevant set of abilities for competence
2. 2. Choosing a threshold level of the abilities in item 1
3. 3. Choosing empirical tests for item 2

For any test already accepted under item 3, it is an empirical question whether someone possesses the requisite
level of abilities, but this empirical question can only be addressed if normative criteria have already been fixed
under items 1 and 2. Institutional rules or traditions usually establish these criteria, but the standards should be
open to periodic review and modification.42

The sliding-scale strategy. Some writers offer a sliding-scale strategy for how to realize the goals of competence
determinations. They argue that as the risks of a medical intervention increase for patients, so should the level of
ability required for a judgment of competence to elect or refuse the intervention. As the consequences for well-
being become less substantial, we should lower the level of capacity required for competence. For example,
Grisso and Appelbaum present a “competence balance scale.” An autonomy cup is suspended from the end of
one arm of a measuring scale, and a protection cup is suspended from the other; the fulcrum is set initially to
give more weight to the autonomy cup. The balancing judgment depends “on the balance of (1) the patient’s
mental abilities in the face of the decisional demands, weighed against (2) the probable gain-risk status of the
patient’s treatment choice.”43 If a serious risk such as death is present, then a correspondingly stringent standard
of competence should be used; if a low or insignificant risk is present, then a relaxed or lower standard of
competence is permissible. Thus, the same person—a child, for example—might be competent to decide
whether to take a tranquilizer but incompetent to decide whether to authorize surgery.44

This sliding-scale strategy is attractive. A decision about which standard to use to determine competence
depends on several factors that are risk-related. The sliding-scale strategy rightly recognizes that our interests in
ensuring good outcomes legitimately contribute to the way we create and apply standards. If the consequences
for welfare are grave, the need to certify that the patient possesses the requisite capacities increases; but if little
in the way of welfare is at stake, we can lower the level of capacity required for decision making.

Although the sliding-scale strategy may function as a valuable protective device, it creates confusion regarding
the nature of both competence judgments and competence itself because of certain conceptual and moral
difficulties. This strategy suggests that a person’s competence to decide is contingent on the decision’s
importance or on some harm that might follow from the decision. This thesis is dubious: A person’s competence
to decide whether, for example, to participate in cancer research does not depend on the decision’s
consequences. As risks increase or decrease, we can legitimately increase or reduce the rules, procedures, or

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measures we use to ascertain whether someone is competent; but in formulating what we are doing, we need to
distinguish between a person’s competence and the modes of ascertaining that person’s competence.

Leading proponents of the sliding-scale strategy hold the view that competence itself varies with risk. For
example, according to Allen Buchanan and Dan Brock, “Because the appropriate level of competence properly
required for a particular decision must be adjusted to the consequences of acting on that decision, no single
standard of decision-making competence is adequate. Instead, the level of competence appropriately required for
decision making varies along a full range from low/minimum to high/maximal.”45

This account is conceptually and morally perilous. It is correct to say that the level of a person’s capacity to
decide will rise as the complexity or difficulty of a task increases (for example, deciding about spinal fusion by
contrast to deciding whether to take a minor tranquilizer), but the level of competence to decide does not rise as
the risk of an outcome increases. It is confusing and misleading to blend a decision’s complexity or difficulty
with the risk at stake. No basis exists for believing that risky decisions require more ability at decision making
than less risky decisions.