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A New Approach to the Ethics of Life: the ―Will to Live‖ in Lieu of Inherent Dignity Or Autonomy- Based Approaches

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LIM BOOK PROOF 1/10/2015 3:07 PM A NEW APPROACH TO THE ETHICS OF LIFE: THE ―WILL TO LIVE‖ IN LIEU OF INHERENT DIGNITY OR AUTONOMY- BASED APPROACHES MARVIN LIM* TABLE OF CONTENTS A NEW APPROACH TO THE ETHICS OF LIFE: THE ―WILL TO LIVE‖ IN LIEU OF INHERENT DIGNITY OR AUTONOMY-BASED APPROACHES .......................................................................................... 27 I. INTRODUCTION ............................................................ 30 II. THE ―WILL TO LIVE‖ .................................................... 38 A. WHAT IS THE WILL TO LIVE? ............................... 38 B. A BIOLOGICAL PERSPECTIVE ............................... 41 III. ABORTION ...................................................................... 48 A. INHERENT DIGNITY FROM CONCEPTION .............. 49 1. Rational Biological Processes, Human Potential, and Innocence ..................................... 49 2. The Meaning of “Rational”: Motivations Matters ................................................................. 52 B. THE WILL TO LIVE ............................................... 63 * Yale Law School, J.D.; Emory University, B.A. Many thanks to James Becerra and the staff of the Interdisciplinary Law Journal for outstanding editing; to Nicole Taykhman and Elizabeth Deutsch for assistance with sources; and to JC for guidance. All assertions, opinions, and mistakes herein are my own. 27 LIM BOOK PROOF 1/10/2015 3:07 PM 28 Southern California Interdisciplinary Law Journal [Vol. 24:27 1. At the Beginning of Life: Distinct from Fetal Consciousness/Pain ............................................. 63 2. Compared to Innocence and Potentiality ....... 69 3. Compared to Autonomy: A Progressive Challenge? ........................................................... 71 C. RECONCEPTUALIZING INTENT: A PREGNANT WOMAN’S WILL TO LIVE .................................................. 74 D. CREATING THE CORNERSTONE OF THE LIFE ETHIC…………………………………………………….81 IV. ASSISTED SUICIDE ....................................................... 82 A. INHERENT DIGNITY UNTIL NATURAL DEATH ...... 85 1. Rational Degeneration at the End of Life: Human Potential Until Natural Death ................ 85 2. Motivations Matter, Again .............................. 86 B. THE WILL TO LIVE ............................................... 89 1. In the Context of LSMT: Partial Versus Whole Brain Death ......................................................... 89 2. In the Context of Assisted Suicide: Rejecting Autonomy and Quality of Life-Based Arguments.91 3. Gauging the Will to Live at the End of Life: Setting the Boundaries ......................................... 96 4. Innocence and Potential Despite Suffering: Challenging the Will to Live? ............................ 100 C. RECONCEPTUALIZING INTENT: ACHIEVING PEACE WITH LIFE AND DEATH .................................................... 103 D. REINFORCING THE CORNERSTONE OF THE LIFE ETHIC…………………………………………………...110 LIM BOOK PROOF 1/10/2015 3:07 PM 2014] A New Approach to the Ethics of Life 29 V. CAPITAL PUNISHMENT ............................................. 110 A. A LOSS OF ―INHERENT‖ DIGNITY ...................... 112 1. Retribution and the Natural and Rational Human Order ..................................................... 112 2. The Loss of Inherent Dignity and Its Conflict with Potentiality ................................................. 114 B. THE WILL TO LIVE ............................................. 119 1. Desire for Retribution: the Overcoming of the Victim’s Own Will to Live ................................... 119 2. Conceptually Superior to Potential .............. 120 3. Conceptually Superior to Autonomy and Consciousness .................................................... 123 C. RECONCEPTUALIZING INTENT: TERMINATING BIOLOGICAL LIFE AND PERSONHOOD STATUS ................ 125 D. BRIDGING THE INNOCENCE/GUILT DIVIDE ........ 127 VI. SELF-DEFENSE ............................................................ 128 A. THE NATURAL, RATIONAL RIGHT OF SELF- DEFENSE: THE WILL TO LIVE AS AN ALTERNATE JUSTIFICATION ................................................................ 129 B. RECONCEPTUALIZING INTENT: DEFENSE VERSUS OFFENSE ......................................................................... 132 C. A COMPARISON TO THE RESPONSIBILITY TO PROTECT/RESCUE ........................................................... 138 VII. CONCLUSION .............................................................. 144 LIM BOOK PROOF 1/10/2015 3:07 PM 30 Southern California Interdisciplinary Law Journal [Vol. 24:27 I. INTRODUCTION ―Death is different.‖1 Many would recognize these words from the U.S. Supreme Court‘s jurisprudence on capital punishment. In that jurisprudence, the Court has distinguished death from every other form of punishment ―in its pain, in its finality, and in its enormity.‖2 No one would doubt, however, that these simple words have import far beyond the context of capital punishment. Implicating many other spheres of both ethics and law, these words from the Supreme Court encompassed what is arguably the most universal and self-evident of human intuitions: human life has paramount value. But despite the ubiquity of this intuition, the ethics of life and death have inspired passionate debate and disagreement throughout the ages. When debating issues like abortion, assisted suicide, capital punishment, self-defense, gun rights, and war, people from all political and religious beliefs agree on one fundamental truth—that human life has paramount value. Yet, the agreement appears to end there. Intractable questions, such as whether life begins at conception, whether capital punishment upholds the value of life or tarnishes it, and whether people have a responsibility to protect others whose lives are at stake even when someone else is causing the harm, continue to divide us. Extraordinary developments in technology designed to save or prolong human lives, as well as in technology designed to make killing more efficient, only complicate these questions. This added complexity manifests itself particularly in two issues: First, end of life care, where there would be no ethical debate over people like Terri Schiavo if medical technology capable of artificially sustaining life did not exist in the first place. And second, war in the age of terrorism, where debate on the ethics of war is colored by the development of drones that make it easier to kill people, including those who do not pose a truly immediate deadly threat.3 Greater public access to far simpler technologies also stimulates ethical debate. This is evident in debates about abortion, where anti- abortionists take advantage of the existence of ultrasound technology to 1. Gregg v. Georgia, 428 U.S. 153, 188 (1976). 2. Id. at 230 (Brennan, J., dissenting). 3. See infra note 236 and accompanying text. See also Editorial Board, Editorial, A Thin Rationale for Drone Killings, N.Y. TIMES (June 3, 2014), http://www.nytimes.com/2014/06/24/opinion/a-thin-rationale-for-drone-killings.html. LIM BOOK PROOF 1/10/2015 3:07 PM 2014] A New Approach to the Ethics of Life 31 push for mandatory ultrasound laws, in hopes of convincing pregnant women that human life begins before birth, and gun rights, where public access to guns contributes to incidents like the killing of Trayvon Martin by George Zimmerman, incensing advocates who want to restrict such access.4 As interesting as each of these debates is, what is even more interesting is to compare the ethical stances people take across these varied subjects. It is particularly interesting to see how traditionalists and progressives define their life ethics so differently, despite both starting from the idea that human life has paramount value. Traditionalists are fiercely opposed to abortion and assisted suicide under most, if not all, circumstances. However, they are far more ambivalent at best, if not fiercely in favor of, capital punishment and liberal use of deadly force for self-defense.5 Progressives are the exact opposite, fiercely opposing capital punishment and the liberal use of deadly force, particularly guns, for self- defense. However, they firmly support individual choice with respect to abortion and assisted suicide. It is this divide that inspires this Article, which seeks to critique both what it calls the ―traditional‖ life ethic, as well as the standard progressive life ethic. Either set of ethical principles tends to present itself as capturing axiomatic moral truths, with which any ―rational‖ person would agree if she thought through these issues enough. Yet, the ethical principles they offer are hardly self-evident, as this Article will attempt to establish. Indeed, neither set of ethical principles is truly successful at fully capturing our most powerful intuitions about why human life (and death) is valuable in the first place, or applying ethical principles consistently across different contexts, specifically the abortion/assisted suicide and capital punishment/self-defense divides. 4. See infra note 235 and accompanying text. 5. It is necessary to note that some prominent traditionalists hold different positions. For example, since the papal reign of John Paul II, the Catholic Church has appeared to pull back its support for capital punishment and broadly permissive use of deadly force for legitimate self-defense. See Marvin Lim, Just War and the Roman Catholic Life Ethic, 26 FLA. J. INT'L L.151 (2014). This Article focuses, however, on the more ―mainstream‖ conservative thought
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