Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow The Right to Die - Literature of Liberty, April/June 1978, vol. 1, No. 2

Return to Title Page for Literature of Liberty, April/June 1978, vol. 1, No. 2

Search this Title:

Also in the Library:

Subject Area: Political Theory

The Right to Die - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 [1978]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Right to Die

Robert M. Byrn

  • Fordham University, Law School

“Compulsory Lifesaving Treatment for the Competent Adult.” Fordham Law Review 44 (October 1975): 1–36.

lf0353-02_1978v2_figure_004

Can a competent but unwilling adult be required to undergo lifesaving medical treatment by court or other legal rulings? In the face of claims to autonomy, bodily self-determination, privacy, or free religious exercise, does the law recognize a patient's right to forego medical intervention?

This medical, legal, and ethical problem is complex. Various court decisions have judged this issue differently. In some cases courts, deferring to rights implicit in the American concept of personal liberty, have championed the patient's choice. In other cases, courts have ruled that various governmental and private interests are sufficiently compelling to overbalance the patient's choice.

The relevant and fundamental patient's rights, all concomitants of personal liberty, include the right to determine what shall be done with one's body, the right to acquiesce in imminent and inevitable death, and the right of free exercise of religion. A patient's autonomy and choice has been subordinated on the basis of state interests in preventing suicide, in protecting incompetents, in protecting the medical profession, in protecting minor children, and in protecting public health.

Without dealing with the moral dilemma of whether the patient's choice to forego treatment is ethically defensible, one can discover what the law is and elucidate its trends. Several conclusions are evident but difficult to reconcile.

  • (1) Every competent adult is free to reject lifesaving medical treatment.
  • (2) Patients' freedom of choice may be subordinated to a compelling state interest.
  • (3) Interference with the patient's rights cannot be justified either by a claimed state interest in preventing suicide or by a claimed state interest in preventing suicide or by a paternalistic exercise of the police power.
  • (4) The state has a parens patriae (“father of the country”) interest in protecting incompetents, but disorientation of a patient ought not to be used to thwart his rejection of medical treatment.
  • (5) Protection of medical functionaries from risky liability cases requires their free access to the courts on matters wherein a patient in precarious condition rejects lifesaving treatment.
  • (6) In the present state of the law, lifesaving medical treatment may be compelled to further alleged governmental interests in preventing the spread of communicable disease or in protecting the welfare of children.