Death Is That Man Taking Names by Robert A Burt
Sargent, Mark A
IN PRAISE OF AMBIVALENCE Death Is That Man Taking Names Robert A. Burt University of California Press, $12.95,232 pp. Nark A. Sargent nn this important work, Robert Burt scathingly critiques...
...Burt's position on abortion is equally clear, but less compelling...
...He believes it is even less successful than our earlier reliance on professionals and secrecy in mediating ambivalence about death...
...Even worse, the administration of capital punishment, for all of its surface rationalism and bureaucratic regularization, is a highly irrational morass of conviction-biased juries, grossly disproportionate execution of African Americans, and judges' failures to confront either the irrationality of the system or their own ambivalence about inflicting death...
...A new paradigm emerged: Decisions about death had to be transparent, not invisible...
...Little was said in public...
...Burt proposes two principles as an alternative...
...Although one may have reservations about Burt's prescriptions, his critique of the fatuity of our current approach to decisions concerning death is devastating...
...Even the most beneficent caregivers unintentionally do harm or withhold palliative treatment because they are consumed by guilt, the instinct for avoidance, or fear...
...But, in Furman v. Georgia (1972), the Supreme Court ruled that all existing federal and state death penalty statutes were arbitrary and irrational...
...Conflicting views are expressed poorly and ambiguously...
...Legalized early abortion, moreover, "can even promote conscious acknowledgment of ambivalence, and this acknowledgment of ambivalence exerts a protective psychological force against escalating abuse...
...Burt sees our social and legal confusion over those issues as historically linked...
...Soon after the Civil War, he argues, a surprisingly stable paradigm encompassing all three questions developed and lasted into the 1970s...
...An ethos of patient self-determination for the terminally ill crystallized around the plight of Karen Ann Quinlan...
...Moreover, the ability of the system to sustain ambivalence and uncertainty will be constrained by decision makers' unavoidable fear of legal liability, which actually may drive current medical practice more than the ethos of patient choice...
...Executions could no longer be surrounded with silence...
...Burt traces this sense of wrong to the illogic of imagining one's own death-a thought too threatening to one's sense of being an independent, self-determining self to be encompassed rationally...
...Ambiguous, hesitant, and restrained measures would also help ensure that "elderly people or poor people or psychologically vulnerable people are not being pressured by this new ethos [of rational choice] into premature self-abandonment...
...More such specific measures, however, would have to be developed before the value of ambivalence could be expressed systematically...
...Hurt has no sympathy for this revisionist regime of transparency, self-determination, and rationalization...
...The medical custody of death hid both death and physicians' decisions over whether and how life should be prolonged for the terminally ill...
...This wrongfulness produces an aura of guilt around dying, resulting in inescapable ambivalence, even when there is a commitment to a "good" or "just" death...
...Those people also struggle with ambivalence, but their struggle can lead to a way out of and beyond it...
...Rather, it defines her as a moral being with obligations, not just rights...
...Nark A. Sargent nn this important work, Robert Burt scathingly critiques the moral vacuity of current approaches to abortion, capital punishment, and end-of-life decisions for the terminally ill...
...Accordingly, the death penalty cannot be reformed and should be abolished...
...Advance directives are misunderstood, forgotten, or ignored...
...In Gregg v. Georgia (1976), the Supreme Court acquiesced in this "regularization" of the death penalty...
...Using the phrase "denying humanity" to equate the incommensurable-the death of the fetus, and requiring the mother to carry the pregnancy to term-is unsatisfactory...
...But how would this untidy system actually work...
...He concludes that a messier approach is superior to silent deferral to medical authority or the myth of rational patient choice...
...a "don't ask, don't tell" ethos prevailed...
...When coupled with his tendency to regard religious belief as a pre-En-lightenment artifact, his global "we" excludes the many who grapple with death's wrongfulness through their belief in transcendence...
...Burt begins with the premise that Western culture has always struggled to mediate our innate ambivalence about death...
...This ambivalence has made it difficult to develop norms and laws reflecting a consensus about abortion, capital punishment, and how physicians should participate in end-of-life decisions...
...He insists that the current either/or debate about the human status of the fetus fails to acknowledge our contradictory currents of feeling about fetal death...
...The state legislatures reacted immediately...
...The first is that intentional, unambiguous infliction of death in any context should be rigorously avoided and socially disapproved...
...Burt believes that in most cases the ideal of rational self-determination is a chimera...
...He is especially persuasive in alerting us to the dangers that lie hidden in our commitment to self-determination and the rational mastery of death...
...This is too facile...
...For almost a century this consensus provided a way of dealing with the sense of wrongfulness surrounding death decisions...
...The two are not the same, despite the possibility of maternal suffering...
...Burt offers suggestions such as requiring family unanimity for end-of-life decisions to capture the full range of conflicting emotions...
...Furthermore, restriction of abortion to an early stage does not necessarily create a "protective psychological force against escalating abuse," when many will not recognize such a limitation as anything more than an unprincipled restraint on maternal choice...
...In an unanticipated backlash to Furman, which had been intended to codify and accelerate a gradual abolition of the death penalty, states enacted new statutes designed to rationalize the process...
...Conceptual tidiness, with its handmaiden of administrative efficiency, is precisely the wrong guide for action here," he argues...
...For example, he presumes that a distinction between a fetus's "potential life" and "actual life" is philosophically defensible, which is questionable at best, and does not necessarily provide even "tenuous comfort...
...He does tend, however, to speak grandly about what "we" now believe, or what "we" now do...
...We recognize death as an inevitability, a natural part of life, and believe that we should strive to find, or create, a good death, and we believe that we can find just ways to dispense death when necessary...
...These principles lead Burt to some clear conclusions...
...He proposes a new conceptual and legal framework that acknowledges frankly how confronting death (either as victim or dispenser of death) releases uncontrollable fear and a sense of wrongfulness...
...He argues, for example, that we have chosen to "lie to ourselves and others about the attainability of perfect justice, of an absence of wrongfulness, in [the death penalty's] administration," betraying our "guilty consciences by engaging in increasingly obvious injustices which...we are impelled to deny with increasing intensity...
...On the other hand, as death approaches, our best intentions are undermined, consciously or unconsciously, by the realization that death is unruly, that it dissolves personal identity, and, most important, that it carries the taint of wrongfulness, both for the dying victim and those around him, and certainly for any dispenser of death...
...Burt also fits changes in capital punishment into this paradigm of invisibility, contrasting the antebellum image of public hangings before wild mobs to the new process of lethal injection or electrocution by "expert" administrators behind closed doors...
...Burt's recognition of the virtue of ambivalence leads him to a more coherent view of medical death-dealing...
...He concludes that "the restriction of abortion to the earliest stages of pregnancy provides some tenuous comfort in the plausible proposition that it is potential life more than actual life that is being destroyed...
...A similar combination of discretion and deference prevailed regarding physicians and end-of-life decisions...
...Burt's reliance on ambivalence as the key to resolving the abortion dilemma avoids fundamental problems, however...
...The paradigm is embodied in the treatment of abortion between the Civil War and Roe v. Wade...
...Dying became no longer a private matter within the home, but something that happened in hospitals, supervised by physicians...
...That consensus collapsed in the late 1960s and the 1970s...
...At the same time, however, the widespread recognition of the "therapeutic exception" to these restrictions broadly facilitated abortions...
...It included a removal of decisions about death from public view, a deferral of decision making to specialized caretakers, and an unacknowledged disparity between restrictive laws and more flexible practice...
...So, for many years, the decision about ending fetal life was captured by professional caretakers, despite the presence of prohibitive abortion statutes...
...Choices would be rational, based on information provided by medical professionals, formal procedures for expression of intent, and bureaucratized review of decision making...
...His ambivalence about abortion also seems rooted in a dubious equation: "If permitting abortion necessarily involves denying the humanity of the fetus (treating it as nothing but disposable biological protoplasm), prohibiting abortion necessarily involves denying the humanity of the unwilling pregnant woman (treating her as nothing but a biological container...
...Persuaded by physicians who insisted, on the authority of science, that life began at a far earlier point than previously believed, the states began to adopt increasingly restrictive abortion statutes...
...The second is that, where death cannot be avoided, ambivalence about its moral status is also unavoidable and should, accordingly, be self-consciously and visibly honored through the design of practical techniques for highlighting and even amplifying its inevitable presence...
...Suddenly, trusting physicians to make such decisions seemed only a way to hide abuse of the vulnerable...
...Embracing rational self-determination ignores the overwhelming evidence that dying people, their families, and physicians often do not act rationally...
...Self-determination by the terminally ill and by pregnant women became essential...
...The case was read widely (although inaccurately) as wresting control of end-of-life decisions from doctors selfishly committed to "heroic" technological preservation of life at all costs, even though the hospital and its physicians were merely looking for protection from liability for removing a patient from a respirator...
...rational standards and administration were necessary...
...Instead, "explicitly overlapping and competitive grants of decision-making authority offer the best way to promote the acknowledgment and expression of ambivalence as death approaches," and to prevent abuse of the dying...
...Roe v. Wade, even though it only intended to protect physician discretion from restrictive state abortion statutes, was immediately read as vindicating maternal choice, a view ultimately absorbed into subsequent Supreme Court abortion decisions...
...This paradigm shift manifested itself in a series of famous 1970s judicial decisions...
...Prohibiting abortion does not mean the mother is necessarily treated as a "biological container...
...Similarly, Burt objects to stark characterizations of abortion as purely a matter of "choice"-a decision to be made by the self-determining expectant mother-or as a matter of "life"-protection of the innocent, vulnerable unborn...
Vol. 130 • March 2003 • No. 6
