Tom Shakely

Research Fellow, Center on Human Exceptionalism

Tom Shakely is a Research Fellow with Discovery Institute's Center on Human Exceptionalism, where he focuses on human dignity, human rights, and law and policy. Tom also serves as Chief Engagement Officer at Americans United for Life, a national leader in advancing life-affirming law and policy, where he hosts "Life, Liberty, and Law," featuring conversations on the human right to life.

Tom previously served as Executive Director of the Terri Schiavo Life & Hope Network, whose Crisis Lifeline serves patients and families facing denial of basic care and strives to awaken the conscience on human dignity and bioethical issues.

Tom has spoken on human rights issues at the United Nations, testified to the District of Columbia City Council on conscience rights, and advised on testimony before the U.S. Senate Judiciary Committee and U.S. House of Representatives. Tom is a member of the American Society for Bioethics and Humanities and Knights of Columbus, and is a Charlotte Lozier Institute guest contributor and a Sons of the American Revolution life member. Tom serves as a board member for the Mount Nittany Conservancy and has previously served as a board member for the Pro-Life Union of Greater Philadelphia and as an at-large member of Archbishop Charles J. Chaput’s Archdiocesan Pastoral Council in Philadelphia, as well as a National Review Institute Washington fellow and as a Leonine Forum fellow.

Tom holds a B.A. in Political Science from the Pennsylvania State University, M.S. in Bioethics from the University of Mary, and Certification with Distinction in Health Care Ethics from the National Catholic Bioethics Center. Tom has written for National Review, HuffPost, National Catholic Register, the St. Louis Post-Dispatch, and other nationally recognized media.


‘Suffering and Sacrifice Are Part of a Flourishing Human Life’

Dr. Jennifer Frey delivered an excellent talk on “Suffering and the Problem of Evil” to the Thomistic Institute’s Yale University chapter this April. Listen to the whole talk, which I think is really a call to be practically wise amidst the tumult of our chaotic lives. I’ve transcribed the below from Dr. Frey’s talk and any errors are mine. First, on the classical view of justice: Now, it’s central to the virtue of justice in particular that there are certain things we must never do because that sort of action is to wrong someone. So, if we were to commit this sort of action—the wronging someone sort of action—then we would be not exercising justice but injustice. Murder, torture, rape, judicial condemnation of the innocent, lying—these are perhaps obvious examples of actions that are unjust because they wrong someone. And the just man is a man who habitually refuses to commit or participate in any unjust actions for fear of any consequences or to obtain any advantage for himself or for anyone else. But another more positive way to put the same point is in terms of flourishing. You could just say, “Well, look, some actions will never contribute to human flourishing, such that one never has a reason to perform them.” And these actions will never be appealing to a person of good character, to a person of virtue. That’s all in keeping with the classical view. Now, the trouble starts to emerge. The trouble is cases where the exercise of virtue, like the virtue of justice, causes great suffering. What are we supposed to say about cases like that? Philosophers are really good at cooking up examples where, unless you perform an unjust act then millions of people will die. I don’t really find these cooked up examples helpful. I prefer real-life, flesh and blood examples. There are lots to choose from, but one of my personal favorites is the story of Boethius… Boethius, executed by Theodoric in 524, paid for his interest in justice with his life. I imagine that most of us would ask what the point of following one’s conscience in the manner of Boethius is, if the result is one’s death. Our ability to see and act in accord with virtue is diminished by the cataracts of our materialistic sense of life—by our false certainty that transcendence is a myth, that this life is all that there is, that nothing really matters. What are we supposed to say about this? I think theoretically there are several options we can take. The first option is that we can just take this to be a counter example to the classical view and we can reject the classical view. That’s an option that lots of people have taken. Second we can amend the classical view as we’ve stated it so far, to acknowledge that virtue alone does not suffice for human flourishing. So, it’s necessary but not sufficient—[that] the world also has to do you a favor, you can be a great person but also then just suffer from misfortunate through no fault of your own and your life kind of ends in tragedy. This is kind of what Aristotle ends up saying in Nicomachean Ethics. Third, you could go the Stoic route and just insist that getting executed is no big deal, is no real loss for the virtuous person. That’s a venerable option. Or, there’s a fourth option and that’s the one I want to explore in this talk. And that is that you can work towards a conception of human nature, virtue, and flourishing in which suffering and sacrifice are at the heart of the account—so you can say that suffering and sacrifice are part of a flourishing human life. What are we willing to sacrifice for? To suffer for? These are urgent questions. And how well we answer these questions is often crystallized in how we’re willing to die. Dramatically different answers to these questions are apparent in the differing responses of J.J. Hanson and Brittany Maynard to similar terminal diagnoses. It’s well known that many who die by assisted suicide or pursue suicide assistance, by the way, pursue death for fear of “being a burden.” To put this another way, many pursue suicide in response to terminal or even chronic conditions because they believe that they share no companionship with another—no one willing to share in the experience of heroic love and no one willing to bear the costs of heroic friendship. Are they right to feel this way? A sacrifice is always an offering or a giving up of something that is really good and that one really desires, such that one will really suffer a loss in giving it up. … To sacrifice is, by definition, to suffer a loss. But if one is able to understand this loss as demanded by the good, then one can suffer willingly and even joyfully as a genuine sacrifice. And the fact that parents can and do sacrifice mightily and happily for their children ought to make us call into question any conception of flourishing that rules it out. We can look to these relationships—parents, spouse, friend, neighbor—these roles, these relationships, give our lives purpose and allow us to enter into a space of common goods that we can obviously take to be higher than private or individual benefit. All of these relationships necessarily involve sacrifice and suffering. There’s no way to love someone without suffering and sacrificing for them. I think we can begin to see here the inklings of an important insight, which is that suffering is very often the path to virtue and also very often the occasion of its expression. Another way to put the point is to say that suffering has real redemptive potential, but it depends on us to see this potential and to realize it. Now, in order to do this, to see this potential and realize it, we have to be willing and able to Read More ›

A Time for Choosing on Roe and the Abortion Regime

The U.S. Supreme Court must reverse Roe v. Wade, writes Ramesh Ponnuru: “[Pro-Lifers] ought to be seeking nothing less than the full overturning of Roe v. Wade and Planned Parenthood v. Casey. We ought to be asking, that is, for a declaration that the Constitution contains no right to abortion, allows legislatures to enact bans on abortion, and does not authorize judicial second-guessing of those bans. … The pro-life movement and Republican politicians should explain that overturning Roe won’t by itself ban abortion. They should make that point because it’s accurate, because it will help prepare pro-lifers for the political battles to come if they succeed in court, and because it will do a little to calm the nerves of those who fear drastic and sudden change in abortion policy. But it’s more important that they call on the justices to do the right thing: Bury Roe, and salt the earth. As the Supreme Court gets set to consider this case, there will be briefs filed on both sides of the issue. These briefs are intended to persuade the Court as it deliberates. We know the sorts of things that pro-abortion briefs will argue: preserve Roe, continue the national nightmare of anti-democratic abortion culture, and prohibit states from any measures that would meaningfully protect mothers, fathers, or their children from the harms of this singularly pernicious industry. What will the Court hear from pro-life scholars, leaders, and organizations? Will the Court hear that Roe must go? That Roe represents a distinct national scandal? That Roe is the source of so much of the Court’s trouble and a cancer in American public life? Or will it hear simply that Mississippi’s approach to protecting human life is acceptable in one way or another, but that the Court need not deal with the fundamental question of the human right to life? Will there be a divided set of opinions from pro-life voices on how the Court should proceed? How might division be exploited from justices who wish to preserve Roe, Casey, and the abortion regime? The forces of abortion are united and purposeful. The forces of life must be, too.

The Supreme Court and American Independence from Abortion

The U.S. Supreme Court is once again turning to the issue of abortion, having decided to consider Dobbs v. Jackson Women’s Health Organization later this year. At the heart of the case is a Mississippi law that would protect human life at 15 weeks from conception, the moment of sperm-egg fusion at which science and medicine recognize that a new and distinct human life comes into existence. The Supreme Court won’t hear the Mississippi case until this fall, and America likely won’t learn of their decision until next summer. In the meantime, we’ll be left to speculate. Ever since the Supreme Court created abortion rights out of thin air with its 1973 ruling in Roe v. Wade, it has been confronted in one form or another by the issue of abortion. After a half century of increasing national fury, it’s difficult to imagine how the Court will ever truly get away from the business of abortion. Neither the status quo, nor the status quo ante, is likely to do the trick. President Joe Biden claimed to oppose abortion for the entirety of his political life until he entered the White House early this year, when he decided that American taxpayers should pay for it and expand the markets of abortion businesses both at home and abroad. In recent politics, betrayals and hypocrisies of this scale once required talk of having “evolved” on the issue. No one has been shameless enough to suggest that Biden’s embrace of abortion is the result of his “evolution” on the issue. What we’ve witnessed in these first months of the Biden presidency is a return to a base politics. “Do whatever you have the power to do,” this approach dictates, “if you believe you can shape the people to your purposes.” The law is a teacher, and President Biden wants the law to teach that abortion is good. Although few Americans believe that about abortion, the President and his allies correctly perceive that law shapes culture. And the American people, they believe, can be made to like it. In Roe, the Court proved that it possessed the power to radically engineer culture—to teach that abortion was both permissible and even necessary. President Biden is simply following that logic to its conclusion that what is permissible, and even necessary, deserves public support. It’s a profoundly cynical attitude, but it’s nonetheless understandable in this sense: more or less since Roe, the Supreme Court has signaled that abortion is as American as apple pie. The stakes of the Supreme Court’s deliberations on Mississippi’s 15-week law are therefore monumental, because their decision could be the end of that essentially “apple pie” attitude. It’s possible that we are stuck with the violent way of life that the Supreme Court first taught. It’s possible that Americans pliantly accept a learned dependence upon abortion. It’s possible that America cannot unring the bell of Roe and abortion. It’s possible, but I don’t believe it. Supreme Court Justice Clarence Thomas has been ringing the bell of common sense, and the clarity of its tolling overpowers the noise of Roe and the moral static of our abortion regime. It sounds like this: “[O]ur abortion jurisprudence has spiraled out of control.” “[W]e are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution.” “[We] created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” “Our abortion precedents are grievously wrong and should be overruled.” “[W]e have neither jurisdiction nor constitutional authority…” “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.” “This Court created the right to abortion… [and a]s the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.” “Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment.” “[W]e can reconcile neither Roe nor its progeny with the text of our Constitution…” “[W]e cannot continue blinking the reality of what this court has wrought.”

China, Human Rights, and Washington’s Lack of Strategy

Bruno Maçães writes on the United States and our shifting and ill-defined aims with respect to China: I have a column out today that takes a broadly positive view of the European Union’s strategy on China. That strategy seems to me the brightest line of the struggling new geopolitical Union being developed in Brussels. The column goes some way towards explaining why that is the case, but I wanted to add a couple points directly related to how the EU compares to the United States when it comes to China. Well, the essential point, it seems to me, is that Washington still lacks a strategy. I am not talking about the erratic policy of the Trump years. The problem has persisted and it was there before Trump. Would you be able to say what the US wants from its China policy? To be tough, it seems. But tough with what purpose? Does it want China to apologize for all its faults in order to get back in Washington’s graces? Does it want the existing Chinese regime to collapse as the Soviet Union collapsed, so that China can live under some copy or other of a Western liberal democracy? (Not that it worked for the Soviet Union’s successor state). Or does it merely want China to refrain from military adventurism abroad, especially across the Taiwan strait? The truth is that no one knows, not even the people crafting the policy. They look to the past, disagree with the previous approach and have embarked on a different course. But the future remains a dark abyss. President Trump’s confrontational approach to China reset the relationship, but to what long term end? What strategic purpose does the tactical move of marginal economic decoupling serve, for instance? It, so far, has not helped American corporations, Hollywood and its actors, or the NBA overcome the problems inherent with access to the Chinese market or de facto Chinese state power over American corporate values. The United States government has a singular role to play in incentivizing courageous behavior and demonstrating an ability to protect American institutions and voices who speak out. Indeed, not until the final hours of the Trump administration did Secretary of State Mike Pompeo brand China’s treatment of its Uyghur Muslims “genocide and crimes against humanity”. President Biden and Secretary of State Anthony Blinken prudently affirmed this condemnation and formalized it in a spring State Department report: The China section of the report says that genocide against minority groups in Xinjiang continues and includes “the arbitrary imprisonment or other severe deprivation of physical liberty of more than one million civilians; forced sterilization, coerced abortions, and more restrictive application of China’s birth control policies; rape; torture of a large number of those arbitrarily detained; forced labor; and the imposition of draconian restrictions on freedom of religion or belief, freedom of expression, and freedom of movement.” We owe Blinken’s State Department particular credit for acknowledging that coerced abortions and birth control are playing key roles in the Chinese regime’s attempt to decimate the Uyghur people. But is this sliver of Washington bipartisanship part of a larger strategy, either in terms of America’s interests or human rights? It doesn’t look like it. The same State Department report asserts that, “There is no hierarchy that makes some rights more important than others,” and that the international expansion of abortion as well as sex and gender ideology now enjoy equal (though in practice, frankly higher) priority to concerns like Uyghur genocide. A natural hierarchy forms every time we set priorities and work to achieve those priorities. This is as true in daily life as it is in the life of nations. Nothing is prioritized when everything carries equal priority. If everything is important, then nothing is. In post-Trump foreign policy with China, we’re awaiting our era’s George Kennan. In the meantime, the Biden administration should consider its position of decrying coercive abortion and birth control in Xinjiang on the one hand, while imposing those practices on other nations and peoples as conditions of international friendship and foreign assistance on the other. We pretend this is nuanced and sophisticated, but who buys that? The Chinese regime knows how to launder its human rights abuses for Western sensibilities. Recall this since-deleted tweet from the Chinese embassy: The spirit behind this crude attempt to whitewash its domestic policies is the same spirit that animates elite Western NGOs like Planned Parenthood, NARAL, and the Center for Reproductive Rights. That’s precisely why the Chinese government would speak in terms of autonomy, gender equality, and reproductive health as euphemisms for much darker realities. Where would they have learned to do that, but from the United States? A true strategy with respect to China as a strategic rival, with respect to human rights in particular, is overdue.

Carter Snead on the Fundamental Disagreement of Our Time: What a Person Is

“The fundamental disagreement … is about what a person is — what human flourishing is, what is the nature of human identity, what is human nature, is there such a thing as human nature. And I think that it divides along, broadly, two polarities that you see play out in our public conversations and our private conversations…” One view, as Professor Carter Snead of Notre Dame lays out in this rich five minutes, is that what defines a human being is that you have “will and desire”. The other and older view is what Alasdair MacIntyre calls “recipricol indebtedness”: Professor Snead points to the question of telos; to whether human life has any concrete end or purpose outside of our fleeting autonomy. One way to start thinking through the question of telos is to ask whether it makes more sense to wake up in the morning and view this new day — this latest page in the latest chapter of your life — as a right and as something due to you, or whether to view today as a gift. Gratitude is the “glass half full” view of life. Gratitude is a great antidote to the wearying attitude that our happiness necessarily ends at the boundary lines of our autonomy, our ability to exercise our will out there in the world and upon others we encounter. Ingratitude is the “glass half empty” view of life. Ingratitude is the anxious sense that we are not really achieving our potential if we’re not somehow imposing ourselves upon others, or upon the world itself. Ingratitude is wearying because it is loveless. Inexplicably, and against all the odds, we are here together. What do we finally make of that?

Independence Day and Renewed Vigor

Happy Independence Day! As America marks July 4th, it’s worth taking a few moments to pause in gratitude for the Declaration of Independence and its lasting importance for what America’s framers recognized about the human person, the source of human dignity, and the nature of human rights. Clarke Forsythe, Senior Counsel at Americans United for Life (and a colleague and friend) writes in National Review today on why the Declaration still matters for all Americans: Amid our national dialogue over race and justice, my family’s reading of the Declaration of Independence will be even more meaningful than usual this Fourth of July. At the core of the Declaration — the founding political document of America — is the principle that the consent of the governed is the foundation of the moral legitimacy of government. That principle follows from three preceding propositions in the preamble: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. … ” By appealing to self-evident truths, the American Founders relied on an extensive philosophical heritage which affirmed certain moral truths that flow logically from their premises once the terms of the proposition are understood. While a belief in moral truth is dismissed today for promoting intolerance, the foundation of tolerance is not moral skepticism, which fosters the will to power, but the humble recognition of transcendent truths that bind all of us, as human beings, equally. “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence,” Martin Luther King, Jr. observed, “they were signing a promissory note to which every American was to fall heir.” We’re living through a turbulent season in American history. But we’ve worked through such times in our past by embracing the sort of wisdom upon which Clarke Forsythe reflects. If we’re all heirs to the Declaration and the Constitution, as Martin Luther King, Jr. believed, then that means that we share in a continuing responsibility to strive together in realizing the ambitious and evergreen challenge inherent in their vision of the human person — in making ideals real, together. If we look squarely at what Americans have long believed about the nature of human flourishing, we discover the guideposts that will see us through this season of discontent: We believe we are created equal. We believe that achieving and sustaining human flourishing requires a social order rooted in justice. And we believe that justice requires equality not only in principle but also in the experiences of our everyday lives. While we all struggle at times to remember that we are all members of one human family. Independence Day can be a special occasion to look back proudly at what we have achieved together even as we look ahead and with renewed vigor to the challenges of tomorrow.

‘The Committee Heard From People Who Had Made Plans for Suicide’

Australia braces for more intentional killing, as Queensland appears set to join Victoria in embracing what we euphemistically term “assisted dying”: Queenslanders are set to find out this week whether [assisted suicide and/or lethal injection euthanasia] laws will be introduced by the Palaszczuk government. In March, a parliamentary health committee recommended Queensland legalise voluntary assisted dying for adults with advanced terminal medical conditions. … The committee, which began its inquiry in November 2018, gauged public opinion on the issue and found most Queenslanders were in favour of helping terminally ill people to die. The committee heard from people who had made plans for suicide in circumstances where they had a life-limiting illness or debilitating condition. It found a terminally-ill person took their own life every four days in Queensland. The committee recommended a person would need to be diagnosed by a medical practitioner as having an advanced and progressive terminal, chronic or neurodegenerative medical condition to be covered. Access should also be limited to people with “decision-making capacity” and the person would need to be assessed by two qualified medical practitioners. The committee recommended the state government review the scheme in three years to ensure legislation was working as expected. Let’s get this straight. The committee first “heard from people who had made plans for suicide”. Good! We should be hearing from those contemplating suicide. And we should be doing this for the purpose of strengthening suicide prevention protocols. Instead, the committee came away from the experience with precisely the opposite conclusion, effectively saying, “It sounds like you need easier ways to kill yourself. Let us help.” Normalizing and promoting suicide is always and everywhere a gross betrayal of a state’s obligation to its people. Only because we live in a medicalized era is this state-endorsed culling of vulnerable persons seen as acceptable. If we had only more traditional means of suicide on offer, most would immediately see that what is under consideration is plainly wrong. But because that state can get some physicians to do the dirty work to provide or even administer a fatal overdose by means of pills or a needle, we imagine ourselves as enlightened sophisticates. And as Ontario demonstrates, eventually states will compel physicians to do this dirty work. Then there’s the fact that the protections Queenslanders are told will accompany this are likely farcical. The requirements that one will have to be mentally competent or be truly terminal in order to be granted lawful suicide? Those protections will in short order be reframed as “barriers to access” and will have to be stripped out for the good of autonomy. Or so we’ll hear. Wesley J. Smith routinely documents this strategy of suicide activists: When pitching legalization, they solemnly promise that they have written, oh so “protective guidelines” into the legislation to prevent abuse. Then, once the law is safely in place, advocates grouse that the guidelines they touted are “obstacles” or “barriers” that unjustly prevent suffering people from accessing assisted suicide. Eventually, political agitation begins to amend the law to make things, shall we say, more flexible. … The emphasized items, now called “barriers,” were lauded as protections in the campaign to convince voters to legalize assisted suicide. I wrote about precisely this phenomenon as it played out in Victoria earlier this year. Eight months after Victoria’s “Voluntary Assisted Dying Act” came into force, alleged experts began their assault on the limited patient protections that allowed its passage in the first place. Victoria’s suicide law had been seen as “the world’s safest and most conservative” due to “safeguards” intended “to protect the rights of vulnerable patients”. But it only took eight months for bioethicists to begin attacking those safeguards as “unwarranted, unprecedented and ethically-problematic”. If suicide comes to Queensland, patient protections will be similarly attacked there. Once suicide is made both lawful and laudable, there is no logical limiting principle.

What If We Ignored Those Most Vulnerable to COVID-19?

“We locked down America with relative speed in March and we avoided all the worst predictions of the potential impact of the coronavirus, but we struggled to reach consensus anywhere on how to responsibly open back up.” If we had to write the one sentence history of the COVID-19 pandemic today, that would be something like America’s version. We don’t know how things will continue to play out, but what’s clear at the moment is that state and local leaders appear to be paralyzed. Unfortunately, those bearing some of the greatest costs of this ruling class paralysis aren’t likely the first to come to our minds. Their story is not told in the TL/DR history of this time. We’re witnessing the failure of the managerial bureaucracy when leaders like New York’s Gov. Andrew Cuomo direct that COVID-positive patients be placed amongst not-yet-infected vulnerable populations. This failure to protect our elders, owing at best to incompetence and at worst to willful indifference, is not limited to New York. Gregg Girvan and Avik Roy of the Foundation for Research on Equal Opportunity (FROEPP) report on the truly grim national impact of COVID on our elders: According to the Centers for Disease Control and Prevention, 5.1 million people live in nursing homes or residential care facilities, representing 1.6% of the U.S. population. And yet residents in such facilities account for 40 percent of all deaths from COVID-19, for states that report such statistics. … On the flip side, it would appear that elderly individuals who do not live in nursing homes may be at a somewhat lower, while still significant, risk for hospitalization and death due to COVID-19. States and localities should consider reorienting their policy responses away from younger and healthier people, and toward the elderly, and especially elderly individuals living in nursing homes and other long-term care facilities. FROEPP is providing vital perspective on a policy failure that risks becoming an elder abuse crisis, insofar as our political leadership continues to fail in repurposing resources to protect those populations most at risk. On Twitter, Avik Roy addresses New York’s apparently low numbers: “A lot of people are speculating that NY state’s numbers are so low because NY counts as a hospital death a nursing home resident who dies in a hospital. We haven’t confirmed that this reporting approach is unique to NY. … But for those who are debating the merits of continuing full lockdowns, it’s worth considering the fact that 39% of #COVID19 deaths are occurring at self-contained residential facilities that host 1.6% of the U.S. population.” It’s worse when looking at the city level rather than the state level. ABC7 in Los Angeles reports that “51% of COVID-19 deaths in LA County were residents in ‘institutional settings’”. Instead of focusing like a laser on this aspect of the pandemic and how best to mitigate it, and instead of allowing all who feel able to do so to return to their businesses and their jobs, California’s political elite spent a significant portion of this week dealing with Alameda County mandarins attempting to keep Tesla, the state’s only automaker, shut down. We’re wasting this precious time. To the degree that lockdowns remain necessary, this time should be spent formulating plans to protect those populations most vulnerable for the foreseeable future. It should be astonishing that our political and media elite — so eager to lecture, so eager to tout their bona fides, so eager to proclaim the need to “believe science” — are ignoring what we know to be true about the populations most impacted thus far, and thus most deserving of our focused response. Dr. Charlie Camosy, author of Resisting Throwaway Culture: How a Consistent Life Ethic Can Unite a Fractured People, gets it: How can we credibly speak about human dignity and the rights of marginalized peoples internationally when we fail to protect our own most vulnerable peoples at home? We must do better in living up to our principles. This virus is not going away. If you have a loved one in a nursing home or institutional care setting, consider sitting down at the kitchen table with your family to determine what it would take to bring your loved one home. I’d wager that many persons for whom institutional care once made sense no longer belong there. There likely will come a point at which the burdens and risk of such care will outweigh the benefits. Especially for those who may already have limited time left, wouldn’t it be better to share that time together and as a family, than leave them to die alone? When it comes to the failure of our political ruling class, we can only stare in amazement. But when it comes to the options available to us in our own lives to care for those we know who are most vulnerable, now is the time to act.

Autonomy, Ezekiel Emanuel, and the Limits of Advance Directives

One of the lessons (wrong, it turns out) that Americans took from the Terri Schiavo fight goes something like this: “What made Terri’s situation so tragic was that she didn’t have a “living will,” an advance directive. If she had only had one of those, everything would have worked out fine.” Advance directives, more commonly called “living wills,” are simple enough documents. Aging with Dignity is just one of many organizations that offers a “simple” advance directive. You run through a list of treatments or care you do or do not want to receive in the future, putting pen to paper, and viola! — you can now rest easy knowing your wishes will be respected should you no longer be able to speak for yourself in a critical moment. Anyway, that’s the idea. However, Aging with Dignity shares the same fatal defect that characterize many advance directives, which is that their primary concern is with preserving autonomy—a patient’s decision making capacity. Does it sound strange to describe this as a defect? It shouldn’t. Autonomy — meaning our independence, our lack of reliance on others, our ability to control of own lives and our circumstances — is good and important, but it is not the sole good of either life or medicine. We balance a whole constellation of goods in our daily lives. Our autonomy is one of those goods, but we make a mistake when it comes to medicine by acting as if our dignity cannot be maintained if we’re compromised in our independence of action. While we should be concerned about preserving our autonomy, we should also recognize that to be human is a far greater thing than to be free from relationship with others. Indeed, it’s in our healthcare encounters that we should perhaps be most willing to prioritize other goods, like trust and obedience, to physicians, nurses, and family members who make have to make decisions for us in times when we cannot respond ourselves — and who may have far greater expertise and insight into what is called for. (At the same time, there’s the grim reality that there are some physicians and bioethicists who more or less pay lip service to the good of autonomy, but turn on a dime and will violate an autonomous decision when the choice of the patient or family doesn’t suit them. This is the “futile care” bioethics controversy.) Enter Ezekiel Emanuel, an architect of the Affordable Care Act and adviser to Joe Biden’s Public Health Advisory Committee, who inadvertently highlights the limits of advance directives in an interview with Philadelphia Magazine: You wrote a piece in the Atlantic a few years ago saying you wanted to die at 75 — or at least you’ll start resisting certain kinds of medical treatment then. Should that paradigm influence how we deal with COVID-19 patients right now?  No. First, of all, let’s be clear, that article — the article I’m most infamous for — was a personal preference. Very explicitly. This was not a policy recommendation. This is about how I’m thinking about my life. And it was a call for other people to think about their lives and come to their own conclusions. On the other hand, we now can see … you need to think about your advance directives. Do you want to be intubated? Lots of people say, “I don’t want to be on a machine.” Well, what is a ventilator but a classic machine? So everyone needs to fill out an advance directive. Second, you’ve got to understand, you may be dying alone. And so you need to begin thinking about what that final word is and commit it to paper. Because your loved ones may not be present for you to say it. In this time of pandemic, physicians across the country are having to make critical and time-sensitive decisions — ethical judgment calls — about what a person whose life is at risk needs to survive a moment of crisis. Emanuel is right that the question, “Do you want to be intubated?” is an important question. But especially with respect to this pandemic, it’s a question most appropriate for your physician to be making based on the specific circumstances you are confronting in a specific moment in time. Is it prudent, therefore, for one to fill out an advance directive where one simply checks a “yes” or “no” box next to a sentence like, “I want to be kept alive by machines”? Advance directives like Aging with Dignity’s, which promote a sort of “choose your own adventure” approach to questions of life and death, may appear to be ethically neutral but in fact obscure rather than underline vital ethical dilemmas. How easily one might cause their own premature death if they do not think long and hard about what they’re doing when they sit down to consider an advance directive. Are you potentially handcuffing your physician from caring for you in an ethical way? Are you at risk of denying yourself the best treatment called for in a particular situation, the specifics of which you necessarily can’t foresee? Are you making judgments based on knowledge and experience, or are you at risk of making decisions from a place of fear? I know many who would agree with Ezekiel Emanuel’s belief that “everyone needs to fill out an advance directive.” The good news is that we don’t need to rely on the Aging with Dignity model. In fact, we can achieve much greater certainty and peace of mind by simply avoiding the weak and compromised question and answer templates that would have us making guesses about hypothetical crises or scenarios. What we want is a type of advance directive known as a “healthcare power of attorney,” or “durable power of attorney for healthcare.” A healthcare power of attorney allows us to appoint someone who will act as our most trusted medical decision maker if we end up in a situation where we cannot speak for ourselves. A healthcare power of attorney Read More ›

China, the Virus, and the Imperative to Build for Tomorrow

Marc Andreessen’s “It’s Time To Build” is a hopeful cri de coeur in this time of pandemic. Americans, and American elite leadership specifically, need what strikes me as essentially a spiritual awakening, and Andreessen speaks to that in his own way by pointing out that an ugly aspect of American life that this virus has revealed is a sort of cultural impotence: Every Western institution was unprepared for the coronavirus pandemic, despite many prior warnings. This monumental failure of institutional effectiveness will reverberate for the rest of the decade, but it’s not too early to ask why, and what we need to do about it. Many of us would like to pin the cause on one political party or another, on one government or another. But the harsh reality is that it all failed — no Western country, or state, or city was prepared — and despite hard work and often extraordinary sacrifice by many people within these institutions. So the problem runs deeper than your favorite political opponent or your home nation. Part of the problem is clearly foresight, a failure of imagination. But the other part of the problem is what we didn’t *do* in advance, and what we’re failing to do now. And that is a failure of action, and specifically our widespread inability to *build*. We see this today with the things we urgently need but don’t have. We don’t have enough coronavirus tests, or test materials — including, amazingly, cotton swabs and common reagents. We don’t have enough ventilators, negative pressure rooms, and ICU beds. And we don’t have enough surgical masks, eye shields, and medical gowns — as I write this, New York City has put out a desperate call for rain ponchos to be used as medical gowns. Rain ponchos! In 2020! In America! We also don’t have therapies or a vaccine — despite, again, years of advance warning about bat-borne coronaviruses. Our scientists will hopefully invent therapies and a vaccine, but then we may not have the manufacturing factories required to scale their production. And even then, we’ll see if we can deploy therapies or a vaccine fast enough to matter — it took scientists 5 years to get regulatory testing approval for the new Ebola vaccine after that scourge’s 2014 outbreak, at the cost of many lives. In the U.S., we don’t even have the ability to get federal bailout money to the people and businesses that need it. We have shut down much of our country in response to a virus that we saw devastate Wuhan and northern Italy, but we do not seem to know what to do next. This is partly because those who lived through similarly serious pandemics, like the Spanish Flu, are no longer with us. But the greater problem is the one Andreessen addresses: because we have forgotten how to “build,” we are struggling to imagine how we will lead ourselves out of lockdown and back to normal life. In retrospect, it will strike us as odd that we are not thinking strategically about how to build in this time. We still tend to think of our states as laboratories of democracy, yet we are not seeing governors meaningfully step up to call for the return of critical manufacturing capacities in their states. And we are not seeing governors call for the creation or replenishing of strategic stockpiles. It should be an American imperative in the wake of this pandemic to decouple the American economy from the Chinese Communist Party as rapidly as possible, and to learn again how to provide for our essential needs. This virus continues to underscore the inherent limits of globalized supply chains to provide critical goods in a fragile time. We’re seeing that America’s supply chains aren’t really America’s supply chains. China’s totalitarian human rights abuses would themselves provide sufficient cause for America and other nations to decouple economically in retaliation against a regime that treats its own people as lower even than many of the worst kings of old treated their subjects. The consequences of the spread of what the press initially termed the “Chinese virus,” the “Chinese coronavirus,” or the “Wuhan virus” have been devastating on a global scale. We remain at risk of Great Depression-scale collapse, due as much to the initial lies and cover-up of the Chinese Communist Party as to any political incompetence of ours. We once envisioned a modernized China, believing that trade would simultaneously liberalize its political regime and expand the territories of the free world. Not only has that envisioned China not come into being, but the unfolding Chinese surveillance police state suggests that the American investment may have been a total loss. It turns out that we may have invested or forfeited trillions over five decades to produce a totalitarian superpower whose amoral capitalism and predatory mercantilism are perversely complemented by an explicit hostility to the human rights of not only its own people, but also of the world at large. A sober assessment of America’s strategy is overdue, particularly if we hope to continue to lead internationally on matters of human rights. Cheaper consumer goods simply cannot be an acceptable price for the oppression of China’s persecuted minorities and political dissidents. America will not be taken seriously as a moral agent in international affairs so long as it implicitly accepts that the value of the human person, and the degree to which the human person is owed protection, can ultimately be measured by their perceived material utility. American independence was won in part thanks to our independence of spirit. We were able to recognize that we were a resilient and a self-sufficient people, and that recognition contributed to our boldness in establishing ourselves as an American people. Do we still have the traits we had at our founding? We’ll need them, along with a renewed vision and creative spirit in confronting the realities of a post-pandemic world order. To the degree that America is responsible for the strength of the Read More ›

Bloomberg: A Patient’s Care is ‘Futile’ if We Decide the Patient Has Little Value

Mike Bloomberg’s presidential campaign is over, but I want to return to something Bloomberg once said that was brought up by reporter Peter Hasson during Bloomberg’s most recent campaign that speaks to a fundamental issue in healthcare issue: Billionaire and Democratic presidential candidate Michael Bloomberg said in a 2011 video that some elderly cancer patients should be denied treatment in order to cut health care costs. He drew on a hypothetical example of a “95-year old” with “prostate cancer” to signal an openness he would have to reform how Medicare provides treatment. “All of these costs keep going up, nobody wants to pay any more money, and at the rate we’re going, health care is going to bankrupt us,” said Bloomberg, who was then New York City’s mayor. “We’ve got to sit here and say which things we’re going to do, and which things we’re not, nobody wants to do that. Y’know, if you show up with prostate cancer, you’re 95 years old, we should say, ‘Go and enjoy. Have a nice [inaudible]. Live a long life. There’s no cure, and we can’t do anything.’ If you’re a young person, we should do something about it,” Bloomberg said in the video. “If those of us in positions of power, from our perspective, decide your life isn’t very valuable, then we’ll lie to you and let you die from a curable ailment,” to put Mike Bloomberg’s point more directly. I’m grateful for Bloomberg’s candor, even as I abhor his moral indifference to distinctly vulnerable persons, because he’s saying what no other politicians can say so bluntly: their plan is to constrain costs by denying care—even care that works and would save lives. Hello, death panels. When politicians advance rationing in healthcare, and especially when they advance rationing of care that would work, they’re stigmatizing particular types of patients and warping a medical phrase called “futile care”. “Futile care” once referred to situations where specific medical interventions no longer achieved their purpose of sustaining human life. If a person’s body is failing, and, for instance, can no longer metabolize food and water, then the specific intervention of food and water by tube would become “futile” as the patient nears death. No amount of food and water will help a person who can no longer metabolize it. That intervention is no longer efficacious, although the person herself remains equally valuable and retains her basic dignity even as she approaches death from natural causes. To put it simply, care becomes “futile” when it stops working. This is the traditional and medical understanding of futile care. It’s simple and it makes sense. Bloomberg was advocating categorizing certain persons as “futile”—i.e. medical discrimination based on invidious categories such as age. Making matters worse, Bloomberg endorsed lying about it: Tell older patients facing a curable disease, “There’s no cure, and we can’t do anything,” and tell younger patients we can “do something about it”. What would that do to trust in medical professionals? “We have the best healthcare system in the world and simultaneously the worst healthcare financing system in the world.” I’ve heard some version of this from many people. It’s helpful for thinking about the true challenge of American healthcare. We should be working to achieve accuracy and transparency when it comes to the problem of the inflated and inscrutable prices associated with healthcare delivery. The answers cannot lie in sanctioning professional mendacity or creating disposable categories of patients to be abandoned because we think their lives have less value than other patients. Certain cures are worse than the disease.

Making Something Lawful Creates a Market for It

The Australian state of Victoria made it lawful to commit assisted suicide last year. The number of those who have killed themselves since “voluntary assisted dying” became legal is more than four times higher than the Victorian government had anticipated. Xavier Symons reports : The Voluntary Assisted Dying Review Board’s first Report of Operations, released on Tuesday, provides information on how Victoria’s euthanasia legislation is being enacted, including details of how many people have been issued with a ‘VAD permit’, as well as information on some of the barriers preventing people from accessing the scheme.  According to the report, permits to access the lethal medication were issued to 70 patients between June 19, when the scheme first started, and December 31. Overall 52 patients ended their lives. This is high, considering the Victorian government had suggested that initial numbers would be as low as 12 in the first year.  When you make something lawful, you create a market for it. When you make something lawful, you create the basis for demand that did not previously exist. And when you make something lawful and create a new market for it, you also send the message that it is “right”. We shouldn’t be creating a market for fatal drug overdoses. And we certainly shouldn’t be applying the truly dystopian phrase “voluntary dying” to acts of suicide—regardless of who ultimately administers the noose, so to speak. One of the things that J.D. Vance chronicles in his 2018 book Hillbilly Elegy: A Memoir of a Family and Culture in Crisis, is the disastrous impact of freely available and lawful opioids. The response to the opioid crisis has been a push to punish the pharmaceutical companies responsible for flooding the market with highly addictive and fatal drugs and to make opioids much more difficult to obtain unless there is clear and demonstrable basis for their limited use in pursuit of healing and recovery. This is a sensible response to a legitimate social crisis. Yet the same issue of death by overdose is treated differently in places that embrace suicide by physician—which always and everywhere requires a euphemistic public relations gloss like “voluntary dying” in order to become law. It’s a scandal that we act—through our own indifference to the moral content at the heart of the law—as if the mother in Appalachia is owed a greater measure of suicide prevention efforts than the mother in Victoria. Activists pushing suicide by physician—suicide by overdose—are attempting to create what is ultimately a meaningless distinction between “planned” and “unplanned” suicides by the sick and other self-killings in order to valorize the former while still loosely pretending to stigmatize the latter.

Suicide Prevention Means Rejecting Suicide Assistance

A friend calls you up to let you know that she’s thinking of ending her life. What do you tell her? She’s getting older and has experienced a life-threatening (but not terminal) condition for many years. She feels beaten down, alone, and like she’s too great a burden for those who were once closest to her, but who’ve generally stopped visiting in recent years. She’s looking to you for good counsel. If you’re like most, you wouldn’t respond by affirming her hopelessness. If you’re like most, you wouldn’t respond by enthusiastically affirming her “right to die” or by encouraging her to pursue a means of suicide. Instead, you would recognize her vulnerability. Instead, you would strive to stand alongside her in solidarity and love. Instead, you would become a better witness to her than you have been, showing her how important she is in your life and in the world. Instead, you would ensure she was afforded every ounce of suicide prevention available. You would do these things because you love her. Affirmation and solidarity, strangely, are increasingly ridiculed and outright litigated against by “right to die” activists who are more concerned with easier access to suicide than with better treatment and care. Kirsten Powers diagnosed the problem with “right to die” activism a few years ago when she pointed out that pro-suicide activists “take advantage of human vulnerability” to “obfuscate [the] reality of assisted suicide”. What these activists are doing in states where suicide is now lawful is to “sweep some of society’s most vulnerable—the elderly, the terminally ill and disabled—prematurely into the hereafter.” Courtney Hempton of the Monash Bioethics Centre offers a case study in pro-suicide activism dressed up as medical ethics in writing on Australia’s embrace of suicide in the form of “voluntary assisted dying”: Eight months after voluntary assisted dying became an option for the terminally ill in Victoria, three bioethicists have raised concerns about a unique ‘gag clause’ preventing doctors from raising the subject with patients. Section 8 of the Voluntary Assisted Dying Act 2017 (Vic) prevents a registered health practitioner from initiating discussion about voluntary assisted dying, or suggesting it as a possibility. Monash PhD candidate Courtney Hempton describes the gag clause as “unwarranted, unprecedented and ethically-problematic”. Breaching section 8 may result in the Australian Health Practitioner Regulation Agency revoking a health practitioners’ licence for “unprofessional conduct”. When the Act became law on 19 June, 2019, the Victorian Government described it as the world’s safest and most conservative regime for the terminally ill, with ‘68 safeguards’ designed to protect the rights of vulnerable patients. Let’s set aside the fact that “terminal” no longer necessarily means “near death” or even “dying” in certain jurisdictions, but can mean simply that a person has a chronic or otherwise unwelcome disability or condition. Amazing how quickly a common sense patient protection provision comes under attack—Victoria’s “Voluntary Assisted Dying Act of 2017” only came into force this past June. No doubt that this suicide-indifferent Act won passage at least in part precisely because it was seen as “the world’s safest and most conservative” approach to lawful suicide. Now, some eight months later, it is precisely those “safeguards” designed “to protect the rights of vulnerable patients” that will be viciously attacked by those who want physicians to be able to pro-actively recommend suicide to their patients. As Wesley J. Smith routinely documents, this is how pro-suicide activists operate: When pitching legalization, they solemnly promise that they have written, oh so “protective guidelines” into the legislation to prevent abuse. Then, once the law is safely in place, advocates grouse that the guidelines they touted are “obstacles” or “barriers” that unjustly prevent suffering people from accessing assisted suicide. Eventually, political agitation begins to amend the law to make things, shall we say, more flexible. … The emphasized items, now called “barriers,” were lauded as protections in the campaign to convince voters to legalize assisted suicide. We can have a culture that either pursues suicide as if it were a positive good or we can have a culture where we strive to prevent suicide because we recognize that it is a threat to public health and human flourishing. Choose your path. Be honest and clear-eyed about what you’re striving for. We can’t do both at the same time.

‘Rights Talk’

How often we hear of human rights and how little we hear of human responsibilities. How can we have one without the other? Every right suggests a claim and every claim suggests a responsibility. What makes human rights “work” is our ability to discern when particular human rights claims ought to be responsibly fulfilled and when particular claims are, in fact, a threat to either the good of the individual or the good of society. This is what Ryan Anderson was getting at recently when he pointed out that rights are “grounded in and thus limited by the demands of justice and common good“. An appeal to human rights that places an inordinate emphasis on, for instance, autonomy and individualism, is an appeal that fails to consider the entire spectrum of human goods—which include justice, the common good, and the exercise of virtue. Your right to do as you wish will eventually conflict with another’s right to do as they wish. Your “human rights” don’t include a right to suicide by physician, for instance, for the same reason that a physician’s rights do include the right to act in accord with their conscience and the historic ethics of the medical profession to do no harm. But “rights talk” has become confusing because we increasingly lack any shared ethical vision for what human life is “for” beyond autonomy, individualism, and material satisfactions. Is there a way out of the forest of our confusion? Start by asking yourself what you’re willing to strive towards; asking what person or future are you willing to sacrifice for? In thinking about this, we might realize that we’re contemplating goods that are higher than ourselves. In recognizing that there are goods outside of, and perhaps of higher value than, ourselves we catch the first glimpses of light out of the forest.

Human Rights Require Knowledge of the Human Heart

I’m excited to join the Discovery Institute’s Center on Human Exceptionalism. Let me share my approach to the issues of human dignity, liberty, and equality and the moral duties that the Center exists to consider and advance. I believe that when it comes to issues of human life we’re generally engaging conflicts that are neither unresolvable nor destined for stalemate. We’re debating issues that matter. We can lose sight of this due to the tendency to throw our hands into the air over the seemingly complex nature of many human life issues, content to “agree to disagree” because “it’s complicated.” For those determined to advance human dignity, liberty, and equality, settling for this false peace is, in fact, a surrender to (at best) a materialist philosophy that prizes autonomy over solidarity, or (at worst) a nihilist relativism that proposes that ultimate reality and truth are unknowable and therefore worthless. We already see the poisoned fruits of accepting that false peace in the degradation of human rights. Human rights were once a shield for the protection of those most at risk to the whims of those with greater power, but as we lose our sense of human beings as possessors of inherent dignity and worth, we also lose a firm basis for universal human rights. As if experiencing a collective dementia, we look upon the face of the human person without recognizing the priceless good we see. And in our forgetfulness we lose our ethical bearings, too often falling for utopian promises for a future that never arrives. When we survey the field, we observe this annihilation across the spectrum of human life: at the earliest and most physically vulnerable period when we most require hospitality and love, in the form of abortion; at the latest and most culturally vulnerable period when we most require solidarity and companionship, in the form of euthanasia and suicide; throughout adult life when we require encounter and friendship, through a “throwaway” culture of indifference; and across the spectrum of bioethical issues from eugenics to human trafficking, from attacks on patient and physician conscience rights to misanthropic environmentalism, from ethically indifferent forms of genetic engineering to stem cell research to cloning, and on it goes. What are we to make of the claims of human rights, amidst all the raw human willfulness and power imbalances that so greatly warp our ability to recognize one another as equals? “To argue with a man who has renounced the use and authority of reason, and whose philosophy consists in holding humanity in contempt,” writes Thomas Paine, “is like administering medicine to the dead…” We’re all that man at certain points—that person in any given moment who is likelier to hold humanity in contempt than to properly recognize that to hang humanity is to hang oneself. We’re flirting with that philosophically in many ways—grimly illustrated by the fact that American prosperity has never been greater in absolute terms, yet neither has our suicide rate—but the evidence of our daily lives, our daily experience, confirms that we want as much of the good life as we can get. At the risk of sometimes administering “medicine to the dead,” I think that what makes Discovery Institute’s Center on Human Exceptionalism so valuable is a fundamental concern with reintroducing—or, at least, re-emphasizing—those things which our ancestors knew—or, at least, grasped for—but which some of us rejected and others forgot. As a consequence, we deprive ourselves of a valuable inheritance. A recovery is possible, and it starts with this: the truth is knowable, ethics and morals of human life are inherent to all law that legitimately directs human action, and the good is achievable in our culture and in our lives. If we refuse these realities, then our pursuit of dialogue is a fool’s errand. There is no purpose to dialogue over issues that have no possibility of resolve. All good law has, at its heart, a moral core, and good law can never be neutral with respect to the aims it seeks to encourage or proscribe. Human reason points us to the moral content at the heart of the sort of good law that makes a healthy culture possible. “Laws without morals,” observed Ben Franklin, “are useless.” Franklin was as much summing up classical knowledge as he was reintroducing it to new generations, and the University of Pennsylvania adopted it as its motto for the same reason: “Leges sine moribus vanae.” The law is a teacher. Not every choice (and relatively few choices when it comes to bioethical issues, it turns out) can be made in a life-affirming way without a teleologically informed conscience or the encouragement of a law and policy regime that is concerned with a knowable set of moral and ethical goods. What we most immediately need to recover is knowledge, first of our own hearts. I look forward to contributing to this important cause.