Books in Review
Testing the Medical Covenant

Copyright (c) 1996 First Things 67 (November 1996): 50-54.

Treating the Person

Testing the Medical Covenant: Active Euthanasia and Health Care Reform. By William F. May. Eerdmans. 146 pp. $14 paper.

Reviewed by Gilbert Meilaender.

If one has time to read only a single book on medical ethics in the near future, Testing the Medical Covenant: Active Euthanasia and Health Care Reform would be an excellent choice. As always, William F. May's writing is characterized by grace and lucidity, and the topics discussed in four short chapters are timely and important. Quite a few books these days treat the growing demand for legalized euthanasia, and quite a few also analyze the pressure for health care reform and some type of national health care system. Very few authors, however, draw these two subjects together, exploring their interconnections as May does. And although I am not as persuaded as he that a single-payer form of national health care is what we need, May's voice-both distinctively Christian and generously humanistic-must be taken seriously.

May's four chapters all carry through a theme for which he is already known: the place and meaning of "covenant" in the practice of medicine. One of the motive forces in the rise and development of bioethics over the past quarter century was a strong movement toward patient autonomy. Paternalistic physicians, so it was believed, were practicing an overbearing medicine, and, with the new armamentarium of treatment techniques available to doctors, "overtreatment" seemed to be the decisive problem. To get medicine off the back of suffering and dying patients, those patients had to become participants in decisions about their treatment. Their autonomy could be honored only if their consent was sought and respected.

Without denying the truth of this account or the significance of patient participation in treatment decisions, May worries about the way this emphasis upon self-determination has produced a "contractualist" medicine. Instead of an authoritarian physician and an obedient patient, contractualist medicine specifies the terms of the exchange: the patient has needs, the physician skills. Hence, the physician can agree to put those skills in service of the patient's desire for healing. Such a contractualist understanding may overcome physician paternalism to some extent, but only at a cost. Genuine contracts should presuppose that the contracting parties are roughly equally informed about the goods and services they exchange; yet, the patient is never the doctor's equal in this regard. Contracts are honored in large part because it is in the interest of the respective parties to do so; covenants are made against a "more spacious" background in which all know themselves to have received more than they have given. Contracts specify as precisely as possible what must be done-and that minimum may easily come to seem quite sufficient. Covenants commit and engage the whole person, often carrying one beyond any minimalist understanding of obligation. The covenanted physician must care for the patient as a whole, not simply treat a disease. And, most significantly, the covenanted physician cannot withdraw from the dying patient when he has done all he can or has agreed to do; he must keep company with the patient in that dying.

Against the background of this understanding of covenant-language whose roots are clearly biblical-May turns to the themes of his four chapters. First he takes up the movement in Western societies toward euthanasia and assisted suicide, arguing powerfully against the acceptance of such practices. If, however, we do continue to prohibit euthanasia, we must ask what sort of healers we need to care for the dying. Therefore, in a second chapter May outlines what it means to term medicine a "profession," and he discusses the chief virtues of the physician. Even covenanted physicians must eventually run up against the limits of their art, however; hence, the third chapter summarizes and evaluates some of the recent discussion of the concept of "futility" in medical care. Finally, in the concluding chapter May connects his two main topics- euthanasia and health care reform-arguing that we cannot coherently or compassionately prohibit euthanasia unless we achieve a system of health care delivery that is both universal and comprehensive in its coverage.

May's analysis of euthanasia is clear and concise. One terminological quibble at the outset: May opposes active euthanasia and defends what he and others sometimes call passive euthanasia. The latter simply means allowing patients to die when we can no longer ward off that death without inflicting upon them treatment that is either useless or exceedingly burdensome. In short, May opposes intentional killing but approves allowing to die. I think it muddies the waters to use the language of active and passive euthanasia to mark this distinction. Ceasing useless treatment is not, properly speaking, a form of euthanasia.

The first chapter's discussion of euthanasia is set, briefly but persuasively, within a Christian context. In order to think rightly about the morality of euthanasia we must, May suggests, learn first to think rightly about life and death. Life is a good, but not the greatest good-which is, of course, God. Death and suffering are evils, but not the ultimate evil-which would be to lose God. Hence, the good of life is to be cherished but not worshiped. The evil of death is to be resisted, but this resistance cannot become "our final meaning and resource." We should therefore join the camp neither of those who struggle to the bitter end against death nor those who view it as a good sometimes to be sought and embraced. May's discussion here has clearly been influenced by the work of Paul Ramsey, who argued that we ought never abandon care for the dying, but that caring sometimes meant giving up the struggle against death and "companying" with the dying. In contrast to that humane wisdom, May discerns in the movement for euthanasia a distinct irony: "It solves the problem of a runaway technical medicine by resorting, finally, to technique."

Here I will not attempt to recount fully May's discussion of the arguments for euthanasia. His own discussion is succinct and clear. He develops briefly what he regards as the five principal arguments for euthanasia and then offers, in each case, a counterargument. Certainly the two chief arguments are those grounded in patient autonomy and in compassion for the suffering. On the first, May says what needs to be said: that "respect for a person" should not be confused with "a readiness to permit or assist him to do whatever he chooses." He also presses hard on the notion of autonomy, suggesting that patients' decisions for death are often not as free of external pressures as they are claimed to be. It is the argument from compassion that constitutes the connecting link between the two chief themes of the book. "To put it bluntly," May writes, "a country has not earned the moral option to kill for mercy in good conscience if it hasn't already sustained and supported life with compassion and mercy. Active euthanasia could become a final solution for handling the problem of the aged poor."

In addressing some of the other arguments offered in favor of euthanasia May offers helpful, critical discussions of our tendency to view death as a purely private event and our strong desire "to solve the problem of human existence through control." Granting that all of us seek some control over our lives, he places that desire in religious context: What we need, finally, is not control but "a breakthrough to existence and meaning beyond the urgencies of control."

What sort of physicians can really care for the dying? Only, May suggests in his second chapter, those who understand medicine not as a career but as a calling or profession. A "careerist" uses his identity as doctor to further his purposes in life-money, status, power. A professional "professes" commitment to the good of healing.

May characterizes a profession in terms of three "marks," each calling for a particular virtue. The intellectual mark of a profession is its development of a complex body of knowledge that cannot be learned through training alone, and the virtue of prudence (understood as attentive discernment) is needed if this mark is to be attained. Morally, professionals commit their knowledge to the good of their patients or clients. Physicians seek not to display intellectual virtuosity but to serve human need, and the virtue required here is fidelity to the patient. Such fidelity is important especially because patients do not share equally in the body of professional knowledge physicians have mastered. "This imbalance requires that the professional exchange take place in a fiduciary setting of trust that transcends the marketplace assumptions about two wary bargainers." If traditional fee- for-service medicine sometimes tempted physicians to overtreat for the sake of their own financial gain, the current trend toward health maintenance organizations and preferred provider organizations may tempt physicians to undertreat. In the face of such systemic pressures, fidelity to the patient's good is all the more important. Finally, professionals organize themselves and seek to maintain discipline within the profession. This calls for the virtue of public-spiritedness, which appreciates and acknowledges that becoming a physician is not something one achieves on one's own. Physicians are indebted to the people who have supported their study and upon whom they have "practiced" and still do practice.

May's covenantal understanding of medicine carries with it a certain danger. As a high and demanding calling, medicine invites us to make of the doctor a savior whose judgment and decision are final. But all of us, doctors included, must recognize that at some point treatment may become "futile." Recent years have seen a burgeoning body of literature discussing the concept of medical futility. In his third chapter May briefly summarizes some of the central themes of that discussion and asks how one ought to respond. If "futility" is essentially a medical judgment, it might seem that physicians who judge a treatment futile should be under no obligation to provide it. Indeed, they might even be obligated not to provide treatment, however strongly a patient or the patient's family may request it.

May is uneasy, however, with leaving such decisions solely to physicians, and he examines a number of arguments for doing so, finding them all wanting. It seems to me, however, that at least one of these arguments ought to have more appeal for May than it appears to. One might claim that doctors who judge a requested treatment to be futile should not provide it precisely in order to defend the integrity of their profession. A contractualist physician might simply place his abilities in service of a patient's request, but surely a covenanted physician has duties not just to patients but to the good of medicine itself.

May's reason for caution here is, however, an important one. Decisions about futile treatment made unilaterally by physicians are only judgments that a certain treatment is futile. Even if it is, the effort to heal may not be futile in some situations. That is, it may be important to the patient's family that they participate in the decision to withdraw treatment and that they be given time to come to terms with what is happening. Because that is the case, May opposes unilateral decisions by physicians to withdraw futile treatment, even if that decision is justified in the name of professional integrity.

Finally May turns to the need for reform of our health care system. Because the coverage it currently offers is neither universal nor comprehensive, he believes that it increases the pressure for euthanasia. In arguing that health care is a fundamental good, May is careful to grant that it is not the only such good. Societies also need schools, roads, armies, etc. But just as we would not "limit the protection afforded by the Defense Department-another fundamental good- to only those who can afford a private army," so also we "ought not to limit access to medical care only to those who can hire a platoon of doctors." For May this claim is grounded not so much in human rights as in religious vision. "Our three major religious traditions-Protestant, Catholic, and Jewish-are communitarian. They all insist that we leave no one out in the cold when naked, starved, or sick."

A good portion of May's argument is taken up with a summary account of the Clinton Administration's failed attempt to achieve some health care reform. I myself would have preferred less of this and more of the theological and moral arguments, but May does, at any rate, situate his discussion squarely in the midst of current debates. His defense of the Clinton proposal is of the "two cheers" sort. Clearly, his own preferred approach would have been a single-payer system something like that used in Canada. And whatever the defects of such a system, he can argue fairly persuasively that the bureaucratic cost of our current complex network of third-party payers is considerable. Whether we really have reason to hope or believe that a national single-payer system instituted by the federal government would be better is, however, a question that deserves more analysis than May offers here.

Still, there might be sound moral wisdom in May's proposals. He himself, however, wants to press beyond such a moral claim and argue that there are theological grounds for turning in this direction. What he says here is said with grace and dignity, but one may doubt whether he says enough to demonstrate what he claims: that the Church has in the gospel a certain wisdom about how a health care system ought best be structured. Can it be true that "nurturing institutions-even of the tax-supported variety-may sometimes intimate and foreshadow the kingdom of God"?

Let us give May's claim its due. It can indeed be true. In his City of God Augustine at one point recalls the story of Rome's founding. Rom- ulus established the city as a place of refuge. Thus, Augustine suggests, "the remission of sins . . . finds a kind of shadowy resemblance in that refuge of Romulus, where the offer of impunity for crimes of every kind collected a multitude which was to result in the foundation of the city of Rome." Here May follows Augustine's lead.

But, of course, this is not Augustine's only appeal to the story of Rome's founding. More characteristically, Augustine will say that Rom- ulus killed Remus because each "sought the glory of establishing the Roman state," but this was a glory that could not be shared. Human community is-until the end of history-founded on such fratricide. It may on occasion provide a "shadow" of what God has in mind for us, but no clear way leads from that intimation to its realization in the promised kingdom. All honor therefore to May's attempt to discern the intimations of God's way in history, but we should be cautious before claiming this as a wisdom the Church has to offer the world.

Gilbert Meilaender is Professor of Theology at Valparaiso University.