Friday, May 23, 2014

Force-Feeding and Selective Paternalism

Judge Allows Military to Force-Feed Guantánamo Detainee. The judge insists that "The court simply cannot let Mr. Dhiab die."  This despite the fact that Dhiab has autonomously (and, in the circumstances, I would think entirely rationally) chosen to go on a hunger strike, and obviously does not consent to be violently force-fed by his captors.

This naturally raises the question: Does the U.S. legal system no longer recognize an individual's right to refuse invasive medical treatment? Or is there simply an exception for when their death would be embarrassing to the administration?  After all, there are surely much clearer and stronger reasons for paternalistic intervention in ordinary cases of, e.g., patients refusing life-saving blood transfusions on religious grounds.  Or is a blood transfusion more invasive than violently shoving a feeding tube up a captive's nose and down his throat? Perhaps it's thought that the captive has "more to lose" -- his life of confinement without trial in this famous military resort being so much more desirable than the future that your average Jehovah's Witness could ever hope for? One wonders.

Obama has said, “I don’t want these individuals to die.” Does he think that his wishes about what happens to other individuals supersedes their own autonomy and bodily integrity?  If he decides he does not want a fetus to die, will he (direct his underlings to) prohibit women from having abortions?  (That's not to say, of course, that those who support a legal prohibition on abortion should be okay with force-feeding! After all, it's much easier to justify overriding individual autonomy and bodily integrity for the sake of an innocent other, than to do so paternalistically for the individual's own sake.  So one could be conventionally "pro-life" whilst nonetheless respecting individual rights to refuse treatment on their own behalf.  But it's a truly bizarre "pro-choice" view that holds that bodily integrity only allows individuals to control their own bodies when doing so amounts to killing another, and not when it is a matter of letting themselves die!)

Force-feeding captives thus strikes me as completely indefensible (though I'm open to counterarguments if you have one to offer). A more ethically fraught question is whether captives/prisoners should be allowed to actively kill themselves -- whether in protest of poor treatment, or as straightforward escapism from a life that they judge to be worse than death.  I'm inclined to think it would be better to allow this, at least if all such suicides then led to heightened scrutiny of the institution, and hence potential remedies for any severe problems that would otherwise continued unabated.

What do you think?


  1. I'm inclined to agree with you, but it should be noted that in the U.S., there has never been an unqualified legal right to refuse invasive medical treatment, except in cases where there is no identifiable countervailing state interest. This (that state interests may restrict the right) is pretty common with medical rights in the U.S., and that the government has a state interest in keeping prisoners alive has been repeatedly recognized by courts. The judge in question was really only able to issue the original temporary restraining order in the first place because it could be done without conflicting with this state interest; which is likely why she complains so much in her decision about the Defense Department's refusal to compromise -- it put her in a position in which she now had to consider it.

    I think your claim about the blood transfusion case shows something of how far the legal situation is from what you have in mind. To refuse medical treatment on religious grounds weakens (legally speaking) any reason for the state to intervene, precisely because religious rights, deriving directly from an explicitly enumerated Constitutional right, can supercede very strong state interests. Take away the religious context and we are in much hazier territory; medical rights on their own, of whatever kind and in whatever circumstances, have a much more indirect connection to the Constitution, and thus are much weaker rights in the U.S. legal system. With Guantanamo, legal counsel for hunger-striking prisoners at Guantanamo originally tried to handle the situation as a religious rights case, for precisely that reason; court refusal to consider the hunger strike as a religious practice was a very serious blow.

    1. Interesting. I could see in some circumstances the state having a legitimate interest in keeping prisoners alive (prior to an upcoming trial, say) in order to "see justice done". But for detainees being held without trial (and hence without concern for justice), it would be illuminating for the government to actually articulate what compelling "interest" they are appealing to, since the most obvious candidate -- their interest in avoiding bad publicity and possible pressure to institute more ethical safeguards constraining their security operations -- doesn't seem a particularly legitimate one...


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