If you push a man off a bridge and he drowns, you’re wanted for murder. But if you cross a bridge and see a man drowning in the water below, and you choose not to save him, you’re not wanted for murder. We know that the law punishes action, but not inaction, even if the two produce the same end.
The above case, though, doesn’t tell us a whole lot about why harm caused by inaction goes unpunished. Maybe an inaction that produces harm is inherently less heinous than an action that produces the same harm. Alternatively, maybe inaction is just harder to punish. How could law enforcement hope to track down every innocent bystander that crosses the bridge? Another explanation might be that to punish harm caused by inaction would be to encourage a different kind of harm: the man who jumps into the river to save a drowning man could end up drowning himself.
It turns out that medical case law offers considerable insight into similar questions of inaction. By examining a few cases, we can approach an answer as to why, exactly, harm caused by inaction tends to be tolerated.
A review of medical case law
In 1978, Robert McFall, who suffered from a rare bone marrow disease known as aplastic anemia, sought a court order that would force his cousin, David Shimp, to donate his own bone marrow to save McFall. Shimp was the only available matching bone marrow donor. But in the ensuing McFall v. Shimp, Judge Flaherty refused to grant McFall’s requested court order. In his concluding statement, Flaherty stated that:
For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue causes revulsion to the judicial mind. Such would raise the specter of the swastika and the Inquisition, reminiscent of the horrors this portends. (1)
In 1987, George Washington Hospital sought to perform a c-section on A.C., a 27-year-old woman with terminal cancer. Doctors held that, since she was expected to die before the pregnancy went to term, delivery via c-section was the the only possible means by which they might secure the child’s survival. A court order authorizing the c-section was granted, and the risky surgery was performed, despite A.C.’s wishes against it. Unfortunately, both woman and child died within a few days of the operation.
A few years after the incident, in In Re A.C., the District of Columbia Court of Appeals voided the 1987 decision. The judge argued that the lower court had been incorrect to prioritize the child’s right to life over the mother’s right to bodily integrity (2).
Courts have also ruled that a patient may refuse for herself a life-saving procedure. In 1914, Mary Schloendorff refused to consent to the removal of a malignant tumor. The doctor disregarded Schloendorff’s refusal and removed the tumor anyway. In Schloendorff v. Society of New York Hospital, the judge ruled that Schloendorff’s doctor had acted wrongly. The judge concluded:
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. (3)
Why we tolerate inaction: narrowing it down
A common thread runs through each of these cases. In each case, a court recognizes a plaintiff’s right to commit murder by inaction. McFall effectively kills his cousin through inaction. A court recognized that A.C. had the right to refuse a c-section, even that meant killing her child. And, interestingly, a court recognized that Schloendorff had the right to kill herself by inaction. In other words, the doctor was wrong in preventing her from doing so.
Another common thread in each of these cases is that, importantly, a court would not recognize an individual’s right to commit the same harm by action. McFall died of a massive hemorrhage several weeks after the verdict; if Shimp had physically induced that hemorrhage in a healthy man, he’d be wanted for murder. At A.C.’s stage in gestation, elective abortion is generally not tolerated. Finally, doctors would be right to refuse a patient’s wish to commit suicide by action. It’s perfectly reasonable to physically restrain a self-injurious patient, for example.
So we’ve arrived back at our original question: why is harm by inaction tolerated, but the same harm by action is not?
Our first example, concerning the man on the bridge, was pretty murky. Perhaps, as we mentioned, inaction is simply harder to punish. After all, many people might have crossed that same bridge. Ought we to track down and punish them all? This variable, though, disappears in our bioethical cases. In all three of our cases, only one patient committed harm by inaction or wished to do so. Still, courts ruled that that one person ought not to be punished or coerced. So, we cannot cite practical reasons for not punishing the harm-doing bystander.
What about harm to the potential saver? A man who jumps in the river to save a drowning victim could just as easily drown himself. And it’s unfair to force a man to go on a rescue mission that could be harmful. Actually, a few of our bioethical cases fall to this criticism as well. Bone marrow donation is painful and can be dangerous, so that alone could have been enough reason to rightfully decline the procedure. As the judge mentioned, we wouldn’t want a society where one feeds at another’s jugular for sustenance. And c-sections are certainly dangerous too; in fact, in A.C.’s case, it was fatal. So in these cases, courts could be recognizing the right to inaction, that permits harm, but that prevents another type of harm, as opposed to mere inaction that permits harm.
But our third case settles this issue, too. In the case of suicide by inaction, unnecessary and unfair harm to the saver isn’t an issue here, because there is no saver. No one is being bled from the jugular. There is only the saved, and it’s certain that the saved stands to experience a net benefit from the procedure in question. Still, a judge upheld the patient’s right to forgo that benefit, and therefore to do upon herself net harm. And, once again, a judge would not have respected her right to commit harm by action. Thus we’re left with the conclusion that harm by inaction is more tolerable than harm by action, for some intrinsic, fundamental reason.
Why we tolerate inaction: from law to philosophy
We’ve struck down several superficial explanations for the law’s tendency to tolerate harmful inaction. It seems, then, that inaction, even if it leads to harm, is for some reason intrinsically palatable.
And the reason, I suspect, lies in our deeply-held respect for the standard course of nature or for nature’s way of doing things. If if you die of cancer, you died according to nature’s way. But if you die by someone else’s hand—or by your own—nature’s way has been sabotaged.
When a gazelle falls to the dusty ground of the savannah, its neck clenched in a lion’s jaws, the gazelle died by nature’s way. And we don’t mind. But when the gazelle falls to a bullet from a poacher’s rifle, nature’s way has been sabotaged. And we do mind.
When a student takes amphetamine to treat ADHD, he’s brought himself closer to the state nature intended for him, and we don’t mind. But when a healthy student takes amphetamine to gain that extra edge, so he can keep writing his paper throughout the night, we do mind. That’s because the student has taken himself further from the state nature intended for him.
Man has spent his entire anthropocene era carving a path of industry through nature’s serene indifference. He has played God. And he feels guilty about it.
And so when mother nature, in the form of a metastatic tumor, seeks to lessen our ranks, and her victim obliges, the least we can do is to stand back and let her be.
References and further reading
- McFall v. Shimp
- Maternal Decision Making, Ethics, and the Law from the American Congress of Obstetricians and Gynecologists
- Schloendorff v. Society of New York Hospital
- Brain Gain: New Yorker article about students who seek neuroenhancement via the use of amphetamine and other drugs
- Military Funds Brain-Computer Interfaces to Control Feelings. We’d love to use brain implants to cure PTSD–but we recoil at the thought of using them on healthy patients.
- The Dice of Life. The legal system punishes a pharmaceutical company for driving a man away from his natural state
- Fighting Chance. Besting nature constitutes a collective action problem. We don’t want anyone else to do it, but we want to be able to do it ourselves