INTRODUCTION :: Relying explicitly on the “principle of double effect” for the first time in American law, the Supreme Court in Vacco v. Quill -a decision noteworthy if for no other reason than for that very reliance-rejected an equal protection claim asserting a right to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances, it is permissible unintentionally to cause foreseen “evil” effects that would not be permissible to cause intentionally. Applying this principle, the Court distinguished intending the death of a terminally ill patient from merely foreseeing death as a consequence of medical treatment. Based on this distinction and noting that it “comports with fundamental legal principles of causation and intent,” the Court rejected the plaintiffs’ claims.
Criticism of Quill, however, was in some circles severe and no doubt fueled by the fact that, as one commentator observed, the Court offered “precious little argumentation or analysis” for reliance on double effect. Critics of the decision focus mainly on two points of contention. First, the Court’s reliance on double effect is allegedly misguided because the principle itself contradicts basic conceptions about intention and culpability. One commentator, noting that the law presumes that agents intend the natural and probable consequences of their actions, asserts, “it is nothing more than self-deception to maintain that the physician who provides terminal sedation foresees, but does not intend, the patient’s death.”
Such criticism of double effect is not novel. Decades earlier, Glanville Williams had rejected a similar attempt to distinguish physician-assisted suicide from other medical treatments of the terminally ill:
What is true of morals is true of the law. There is no legal difference between desiring or intending a consequence as following from your conduct, and persisting in your conduct with a knowledge that the consequence will inevitably follow from it, though not desiring that consequence. When a result is foreseen as certain, it is the same as if it were desired or intended.
The second criticism leveled against the Quill decision is that the application of double effect analysis simply has no support in case law. The doctrine of double effect is alleged to be “an obscure, ambiguous, and controversial artifact of medieval Catholic theology. It has no previously recognized status in the law, and it has been either ignored or severely criticized in the philosophical literature.” Similarly, although perhaps less forcefully, another scholar observes: “[The doctrine of double effect] has had little direct effect on legal analysis . . . . It is a highly technical doctrine, and it is far from clear how useful it is in distinguishing between permissible and impermissible actions.”
The contrast between the Court’s confidence that its holding embodies “fundamental legal principles of causation and intent” and critics’ skepticism raises obvious concerns about the ruling’s coherence-concerns that the opinion’s cursory defense of its reliance on double effect fails to negate.
This Article responds to these concerns by supplying what the Quill opinion arguably lacks with respect to both criticisms. Part II directly defends double effect as a valid principle of ethical deliberation against contemporary philosophical objections to it. Part III illustrates that, claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged, principle employed regularly in American case law. Part IV, drawing on the preceding considerations, argues that Quill’s application of the principle of double effect, though lacking a fully articulated foundation, comports with canons of ethical and jurisprudential reasoning.
The principle of double effect in fact constitutes an unremarkable, well-trod mode of analysis applied in numerous contexts. Double effect provides an indispensable model for resolving culpability questions for many situations in which actors are called upon to contemplate conduct intentionally aimed at protecting some important good, although foreseeing at the same time that such conduct will cause unintended harm.
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December 2013, Vol. 65, No. 6
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Jennifer Koh, Rethinking Removability
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