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“Suicide Kits” for Sale

photograph of Amazon search bar

This article discusses suicide. Following common journalistic ethics practice, precise details about means or resources for committing suicide may have been deliberately left out or altered.

Method matters. Depending on the study, between 80% and 90% of people who attempt suicide and fail do not go on to attempt suicide again. The public health implication is that by regulating the availability of popular and effective means of suicide – mainly firearms and select chemicals and pharmaceuticals – deaths from suicide can be prevented.

Given this, what should we make of the fact that highly purified sodium nitrite, an increasingly popular option for suicide, has been readily available for purchase on Amazon in the United States? A lawsuit filed on September, 29th accuses Amazon and Loudwolf – a sodium nitrite manufacturer featured on Amazon – of “promoting and aiding” the suicide of two teenagers. A Twitter thread by Carrie Goldberg, a lawyer working on the case, characterized Amazon as a “serial killer.”

The case will likely turn on a number of details alleged by the plaintiffs: that Amazon recommendations packaged together sodium nitrite with other supplies and informational materials in so-called “suicide kits”; that Amazon failed to enforce its own policies; that Loudwolf failed to include FDA-required warning labels on sodium nitrite; that Amazon was previously warned and did nothing about sodium nitrite sold on its platform being used in suicides; that no information was included about methylene blue (the recommended treatment for sodium nitrite poisoning); that there is no compelling reason to allow household purchases of pure sodium nitrite; and, of course, that both deaths were minors.

Abstracting away from the details, however, the case is part of a decades-long pattern of the internet facilitating suicide – from providing community, to disseminating information, to assisting the purchase of supplies.

It began in 1990 with alt.suicide.holiday, a Usenet news group (similar to an internet discussion forum). Users would frankly discuss suicide and share tips and resources. While that group is now defunct, there have been multiple variants. The popularity of sodium nitrite as a means of suicide is attributed to a recent iteration. In many U.S. jurisdictions, advising or encouraging suicide is illegal, so these sites’ relationship with the law is complex – so too is their relationship with the media. Such forums begin as niche communities of the suicidal for the suicidal, and end up as New York Times exposés (most recently in December of 2021). Once aware, grieving families and the broader public often push (successfully) for these sites to be shut down or hidden from internet search results.

In contrast to the prevailing public health or prevention narrative of suicide, the leitmotif of these communities is, in their words, “pro-choice.” The idea is that the right to suicide is simply an extension of our personal autonomy and right to self-determination.

Especially in liberal individual rights-oriented contexts, autonomy is an enormously important ethical principle and people are given broad latitude to make their own decisions as long as they do not negatively impact the rights of others.

In American medicine, for example, patients have an almost unlimited license to refuse treatment. However, humans are not always autonomous actors. Children for instance are not allowed to make their own medical decisions. Being intoxicated is another common exception. In rare cases, people have been known to commit sexual assault or other crimes under the influence of the sleep aid zolpidem (Ambien). The defense is that these were not autonomous actions; that they did not flow from the authentic reasons and desires of the offender.

Can suicide be an autonomous act? Under the prevailing medical account of suicide, in which suicide results from serious mental illness, it almost definitionally cannot. In American law, risk of harm to self or others is grounds for violating patient autonomy and forcibly administering treatment.

That a person is suicidal is treated as evidence that they are not in sound mind and not an autonomous decision maker. Suicidality discounts autonomy.

Those in the online suicide “pro-choice” community challenge this logic and hold that suicide can be a reasonable reaction to a person’s life and circumstances, and people should have access to the knowledge and means to kill themselves relatively painlessly. In this they have at least some philosophical company. Thomas Szasz, a controversial Hungarian-American philosopher and psychotherapist, long asserted that suicide was simply a choice as opposed to an expression of sin or illness.

Szasz is an extreme case and was broadly skeptical of the very designation of mental illness. However, in contrast to a previous Christian sanctity-of-life framing, there is growing acceptance in the Western world that suicide may not always be unreasonable. Instead, it can be an understandable response to circumstances in which someone’s quality of life is below some personal threshold. A good case in point is the right-to-die movement, which advocates for medical-aid-in-dying and physician-assisted suicide. Ten states currently have medical-aid-in-dying in which a terminally ill person with six months or less to live is able to request a lethal medicine they can ingest. Supporters of medical-aid-in-dying stress that the practice is distinct from suicide, partly to escape the stigma associated with suicide, but the conceptual distinctions are slippery.

America is comparatively conservative, but several nations have far more permissive laws when it comes to assisted suicide. Belgium, the Netherlands, and Canada, among other countries, allow for voluntary euthanasia on the basis of extensive and untreatable mental suffering even absent terminal illness or, indeed, any physical illness whatsoever. (The ethics of this have been previously discussed here at the Prindle Post.) The 2018 case of Aurelia Brouwers, who was voluntarily euthanized in the Netherlands after years of failed mental health treatment, brought broader attention to the practice. She was the subject of a short film documentary.

Once it is accepted that unbearable suffering alone is an adequate basis for suicide, then distinctions about how long someone has left to live, or whether that suffering is mental or physical become secondary.

The process of seeking assisted suicide on the basis of mental suffering is supposed to have extensive safeguards, yet critics worry that slip-ups happen. Note, though, that the locus of discussion shifts from the act of suicide to the process of doing it responsibly and ethically.

Surprising to some, among the staunchest critics of the right-to-die movement are segments of the disability rights movement. The concern is that people may be pressured into choosing assisted suicide due to discrimination against people with disabilities or inadequate medical care, i.e. that these decisions are not fully autonomous. Of course, there will always be reasons for suicide, and these reasons may often be due to larger social and economic failings. Poverty is a known contributing factor to suicide. How reasonable this is may depend on where one is standing. In individual cases it is partly the environmental factors – poverty, debt, personal tragedy, discrimination – that can make suicide seem an appropriate response to circumstance. And yet, it may appear ghoulish to have a state-sanctioned process that facilitates suicides partly driven by these factors that the state itself perpetuates (or at least is often in the best position to address.)

Negotiating the appropriate policy prescription remains an impossible task. Mental health professionals, suicide prevention advocates, the American right-to-die movement, disability rights activists, and the online suicide pro-choice community can all share a broader commitment to self-determination and yet disagree vehemently about specific issues: when suicide is an autonomous act, what kind of safeguards need to be in place, what counts as unbearable suffering (or a lack of possibility of improvement), and what action is justified to prevent suicides.

Still, vanishingly few people would consider 16-year-olds killing themselves with online instructions and chemicals purchased on the internet as anything other than a tragedy.

It is statistically likely that had the teens in the lawsuit against Amazon attempted suicide with a less lethal method, they could have been successfully treated and their suicide attempt would have been a thing of the past.

Without speculating on the details of the specific case, it is nonetheless worth acknowledging that Amazon, whatever its failing as a corporation, cannot be the sole cause of this or any suicide. People are seeking information and supplies. And at least some suicides will default to known, highly lethal methods like firearms. It is also true that while the majority of those who attempt suicide and fail do not attempt again, previous suicide attempts are the single biggest risk factor for a later successful suicide. Put cynically, there is a demand. Regulating supply, while important given the relevance of the method, can only do so much. Suicide often exists at the intersection of means, mental health, and personal and environmental circumstance.

One relatively radical way to think about suicide would be as a regulated right – something permitted but tightly controlled. The provision of medical care and mental health care would presumably be part of seeking state-sanctioned suicide. People would need to have good reasons (whatever society decides those reasons are) for seeking materials-for or aid-in suicide, and undergo an appropriate approval process.

As countries like the Netherlands and Canada illustrate, negotiating what this approval process should be like is fraught. The balancing point of different communities with an interest in suicide including the suicidal, their families, mental health professionals, disability rights activists, religious communities, and the state will undoubtedly be a precarious one. Nonetheless, taking seriously the demand for suicide could plausibly help to bring suicidality out of the dark as something that people can talk seriously about and potentially get treated for. Surely a society ought to inquire as to why its citizens wish to take their own lives.

If you or someone you know is struggling with thoughts of suicide, (prevention-focused) resources can be found at SpeakingOfSuicide.com/resources.

The Ethics of Manipulinks

image of computer screen covered in pup-up ads

Let’s say you go onto a website to find the perfect new item for your Dolly Parton-themed home office. A pop-up appears asking you to sign up for the website’s newsletter to get informed about all your decorating needs. You go to click out of the pop-up, only to find that the decline text reads “No, I hate good décor.”

What you’ve just encountered is called a manipulink, and it’s designed to drive engagement by making the user feel bad for doing certain actions. Manipulinks can undermine user trust and are often part of other dark patterns that try to trick users into doing something that they wouldn’t otherwise want to do.

While these practices can undermine user trust and hurt brand loyalty over time, the ethical problems of manipulinks go beyond making the user feel bad and hurting the company’s bottom line.

The core problem is that the user is being manipulated in a way that is morally suspect. But is all user manipulation bad? And what are the core ethical problems that manipulinks raise?

To answer these questions, I will draw on Marcia Baron’s view of manipulation, which lays out different kinds of manipulation and identifies when manipulation is morally problematic. Not all manipulation is bad, but when manipulation goes wrong, it can reflect “either a failure to view others as rational beings, or an impatience over the nuisance of having to treat them as rational – and as equals.”

On Baron’s view, there are roughly three types of manipulation.

Type 1 involves lying to or otherwise deceiving the person being manipulated. The manipulator will often try to hide the fact that they are lying. For example, a website might try to conceal the fact that, by purchasing an item and failing to remove a discount, the user is also signing up for a subscription service that will cost them more over time.

Type 2 manipulation tries to pressure the person being manipulated into doing what the manipulator wants, often transparently. This kind of manipulation could be achieved by providing an incentive that is hard to resist, threatening to do something like ending a friendship, inducing guilt trips or other emotional reactions, or wearing others down through complaining or other means.

Our initial example seems to be an instance of this kind, as the decline text is meant to make the user feel guilty or uncomfortable with clicking the link, even though that emotion isn’t warranted. If the same website or app were to have continual pop-ups that required the user to click out of them until they subscribed or paid money to the website, that could also count as a kind of pressuring or an attempt to wear the user down (I’m looking at you, Candy Crush).

Type 3 manipulation involves trying to get the person to reconceptualize something by emphasizing certain things and de-emphasizing others to serve the manipulator’s ends. This kind of manipulation wants the person being manipulated to see something in a different light.

For example, the manipulink text that reads “No, I hate good décor” tries to get the user to see their action of declining the newsletter as an action that declines good taste as well. Or, a website might mess with text size, so that the sale price is emphasized and the shipping cost is deemphasized to get the user to think about what a deal they are getting. As both examples show, the different types of manipulation can intersect with each other—the first a mix of Types 2 and 3, the second a mix of Types 1 and 3.

These different kinds of manipulation do not have to be intentional. Sometimes user manipulation may just be a product of bad design, perhaps because there were unintentional consequences of a design that was supposed to accomplish another function or perhaps because someone configured a page incorrectly.

But often these strategies of manipulation occur across different aspects of a platform in a concerted effort to get users to do what the manipulator wants. In the worst cases, the users are being used.

In these worst-case scenarios, the problem seems to be exactly as Baron describes, as the users are not treated as rational beings with the ability to make informed choices but instead as fodder for increased metrics, whether that be increased sales, clicks, loyalty program signups, or otherwise. We can contrast this with a more ethical model that places the user’s needs and autonomy first and then constructs a platform that will best serve those needs. Instead of tricking or pressuring the user to increase brand metrics, designers will try to meet user needs first, which if done well, will naturally drive engagement.

What is interesting about this user-first approach is that it does not necessarily reduce to considerations of autonomy.

A user’s interests and needs can’t be collapsed into the ability to make any choices on the platform that they want without interference. Sometimes it might be good to manipulate the user for their own good.

For example, a website might prompt a user to think twice before posting something mean to prevent widespread bullying. Even though this pop-up inhibits the user’s initial choice and nudges them to do something different, it is intended to act in the best interest of both the user posting and the other users who might encounter that post. This tactic seems to fall into the third type of manipulation, or getting the person to reconceptualize, and it is a good example of manipulation that helps the user and appears to be morally good.

Of course, paternalism in the interest of the user can go too far in removing user choice, but limited manipulation that helps the user to make the decisions that they will ultimately be happy with seems to be a good thing. One way that companies can avoid problematic paternalism is by involving users at different stages of the design process to ensure that user needs are being met. What is important here is to treat users as co-deliberators in the process of developing platforms to best meet user needs, taking all users into account.

If the user finds that they are being carefully thought about and considered in a way that takes their interests into account, they will return that goodwill in kind. This is not just good business practice; it is good ethical practice.

Faramir’s Insight

photograph of Lord of the Rings book atop Middle-Earth map

When I last reread J.R.R. Tolkien’s Lord of the Rings trilogy, one line in particular stood out to me. It was something that Faramir says when talking with Frodo about whether to abandon Gollum. I’ll quote the line in context:

‘Frodo, I think you do very unwisely in this,’ said Faramir. ‘I do not think you should go with this creature. It is wicked.’

‘No, not altogether wicked,’ said Frodo.

‘Not wholly, perhaps,’ said Faramir; ‘but malice eats it like a canker, and the evil is growing. He will lead you to no good. If you will part with him, I will give him safe-conduct and guidance to any point on the borders of Gondor that he may name.’

‘He would not take it,’ said Frodo. ‘He would follow after me as he long has done. And I have promised many times to take him under my protection and to go where he led. You would not ask me to break faith with him?’

‘No,’ said Faramir. ‘But my heart would. For it seems less evil to counsel another man to break troth than to do so oneself, especially if one sees a friend bound unwitting to his own harm.

The last line rings true to my experience. It is one thing for me to take on a sacrifice to do what is right. It is another thing entirely to advise someone else to make that sacrifice.

It is easy to be frugal about stuff I buy for myself. Harder to be frugal about stuff I buy for my wife. Why? Because it is harder to ask someone else to sacrifice to do the right thing. I would never spend much money on jewelry for myself. And yet I felt tempted to spend too much money on an engagement ring for my wife. (Fortunately, my wife is as frugal as I am, and so independently insisted on a cheap $50 engagement/wedding ring.)

I want to talk about this phenomenon of expecting less of others than we expect of ourselves. I want to talk about it, because it first appears as almost noble. But the more I’ve thought about it, the more convinced I’ve become that it is actually a vice. It involves a neglected failure of character, a failure to take seriously the moral personality of others.

To see this, let’s consider possible explanations of the phenomenon. Two I’m sure are wrong, and three that might be right.

Wrong Hypothesis 1: Different Obligations

One possible explanation is that I really think my moral obligations are stricter than the obligations of others. Faramir thinks it would really be wrong for him to break his promise to Gollum, but that it would not be wrong for Frodo to do the same.

While I’m sure this sometimes happens, it does not explain the phenomenon I’m trying to understand.   The difference I’m responding to is not one of ‘weaker’ vs. ‘stronger’ but rather me vs. other. I will hold my close friends to higher standards than strangers, even if I think the strangers are better people. Likewise I am willing to hold myself to a higher standard than my close friends, even though I know many of my close friends are more virtuous than me.

Wrong Hypothesis 2: Selflessness

So could it be selflessness? Could it be that I just care more about the sacrifices of others than I do about my own sacrifices?

Perhaps this occurs for some people, but it is not the explanation in my case. For one thing, I’m not nearly that selfless. I spend far more time working on my own job applications than helping friends with their applications. Why? Because I selfishly care about my own future more than the future of my friends.

For another thing, the closer I am to someone the more, not the less, willing I am to ask them to sacrifice. If a stranger asks me for advice, I’m very unlikely to tell them to make the radical sacrifice. But the closer a friend, the more comfortable I am to ask of them sacrifice. As I will argue below, this is because the closer a friend, the more deeply I appreciate their moral personhood.

Possible Hypothesis 1: Moral Uncertainty

One possible explanation is that the hesitancy follows our moral uncertainty combined with a fear of responsibility.

Suppose someone held a gun to my head and told me to renounce Christianity. I’d like to think I’d have the courage to die rather than commit apostasy – that is, the abandonment of my personal beliefs. (After all, I believe that to commit apostasy is one of the worst things a human can do.) But the thing is, I’m not sure it’s really that bad. After all, I was being coerced. Everyone would be able to tell I don’t really mean it. So is it really committing apostasy? Or is it instead just playacting to pacify the criminal?

Those replies ring hollow when I imagine facing the situation myself. But they ring less hollow when I imagine a friend facing a similar situation. If a friend asked me what to do, I’d be much more tempted to tell them to “just say what the person wants to hear, you don’t have to mean it.” If a friend felt guilty about committing apostasy in such a situation, I’d be tempted to tell them not to feel bad, they didn’t do anything wrong.

The uncertainties loom larger when I consider a friend making the sacrifice. But not only then. They also loom larger when I consider making the choice myself but sacrificing another. These same worries would ring less hollow if someone held a gun to another person’s head and told me to commit apostasy. The significance of my uncertainty is magnified when others are at risk, because if someone else dies as a result of my choice, it’s not just sad but a moral tragedy. It’s not similarly a moral tragedy if I die as a consequence of my own choice. It’s sad if I die while trying to free climb a mountain, but it’s not a moral tragedy. It’s a moral tragedy if I kill someone else after taking a risk. Ultimately, I don’t want to give advice to others, because if I’m wrong I’ll feel responsible for that choice.

If this explanation is right, then the phenomenon is vicious. It denies the moral personality of others. I’m failing to recognize that the choice is still up to the other person, even when I advise them what I think is right.

This is easiest to see if we think of ourselves as the one getting advice. If I ask for the advice of someone else, I recognize it is still up to me whether to listen. It is myself, not them, who is ultimately responsible for the choice. As such, I don’t want the other person managing me with their advice in order to assuage their own conscience. Rather, I want them to be honest so that I can fully take responsibility for my own choice.

But if I’d want others to be honest with me so that I can make my own choice. Then, if I fully appreciated the moral personality of others, I’d not be tempted to be dishonest with them in order to shield myself from responsibility.

Possible Hypothesis 2: Shared Values

My wife’s theory is that the phenomenon is explained by the role of shared values in moral advice. The more someone shares your values, the more appropriate it is for them to act on your advice. You share perfectly your own values, you share extensively your close friend’s values, But you only partially share the values of a stranger. So, if moral testimony involves giving advice in light of shared values, then the more uncertain you are that values are shared, the less certain you are whether to recommend sacrifice.

Of all the plausible explanations of the phenomenon, this one looks closest to being noble. But even here I think there is something vicious about the phenomenon. If you believe the person is under the same moral obligation, but that they don’t share your values, to that extent you must think their values are mistaken. But if they are mistaken, and if you take seriously their moral personality, that gives you reason to explain as best you can the value you see in the sacrifice. It does not, if you take the moral personality of another seriously, give you reason to shrug your shoulders and consign them to vice. That would be to treat them as a moral lost cause.

Possible Hypothesis 3: Inside/Outside Tension

A final explanation of the phenomenon is that it is explained by a tension between the deliberative and external perspectives on action.

When you deliberate about your acts, you look at them from the inside. Because human death is a terrible thing, you recognize it would be terrible to kill one human to save three. You can tell, from the inside, that it would be wrong to kill someone even to save more lives.

But we can also take the external perspective. We can see, not a choice to kill, but rather a choice between two outcomes. It is not a choice to kill, but rather a choice between one killing and three deaths. And from that external perspective, we recognize that one killing is not worse than three deaths.

The force of moral constraints only emerges inside the deliberative perspective. They don’t appear when you look merely at the outside comparison of results. And this may explain our phenomenon: From the deliberative perspective, Faramir can see that it is an evil thing to break a promise. But from the outside perspective, a broken promise is far less evil than Frodo’s death and betrayal.

Once again the phenomenon would reveal an inability to appreciate the moral personality of others. It stems from a failure to see the other as a deliberating person, it instead looks at them merely from the outside as a sort of object. The phenomenon emerges when you look at a person, rather than when you look vicariously with a person at the choice they face.

I’m not sure which explanation is right. But I’m inclined to think all three plausible explanations reveal just how far I have to go before I really appreciate the full personhood of others.

Parents’ Rights and Public Education

There’s been no shortage of post-mortems detailing Terry McAuliffe’s defeat at the hands of Glenn Youngkin in Tuesday night’s gubernatorial contest. Most accounts target one issue in particular: education. They point to school lockdowns and curriculum complaints as having sealed McAuliffe’s political fate. More specifically, it was McAuliffe’s declaration that “I don’t think parents should be telling schools what they should teach” that was responsible for driving away white, suburban moms and flipping the state from blue to red. In the end, the governor’s race in Virginia was decided by a single concern: parents’ rights.

However true this tale may or may not be, it seems vital to investigate our convictions regarding paternalism, autonomy, and the conflict between state interests and parents’ rights. How far should these rights extend? What function does the state serve in providing public education? And who should get the final say over school curricula? While the story’s already been written, we should take a moment to consider whether McAuliffe’s remark really was the obvious gaffe it’s been made out to be.

Certainly there’s always been a presumption in favor of familial discretion; it’s commonly held that households should be free to handle their own affairs. Consider, for example, Wisconsin v. Yoder. State law mandated that all children attend public school until age 16. But three different Amish families challenged the state’s right to compel attendance. They argued that compulsory education precluded their children from meaningful participation in their religious faith. High school instruction only interfered with these young adults’ religious development and integration into communal culture. Ultimately, exposure to the alternative values and worldviews preached in secondary school constituted a threat to the Amish way of life. Whatever worldly knowledge they might be taught at school paled in comparison to the vocational training they would receive at home.

In a unanimous decision (7-0), the Supreme Court found that these families’ right to freedom of religion outweighed the state’s interest in seeing their children educated. While “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system,” that imperative cannot justify trampling on other constitutional rights and liberties. This is true especially when a different, but commensurate, education remains on offer. As Chief Justice Burger explained,

The State’s claim that it is empowered, as parens patriae (parent of the people), to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained […], for the Amish have introduced convincing evidence that […] forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.

On its face, the court’s decision in Yoder might seem to provide absolute license for parents to dictate all aspects of their child’s education. Contrary to McAullife’s insistence that parents butt out, Yoder seems to suggest that the buck stops with them.

In reality, however, the ruling is much more limited than it might first appear. First, it only applies to cases where public education runs up against very specific First Amendment religious protections. Second, much of the ruling hinges on the Amish’s unique way of life. As Burger notes,

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

Given the unique (and especially isolated) way of life the Amish practice, it’s easier to explain how these students’ withdrawal from public school wouldn’t “materially detract from the welfare of society.”

Still, we shouldn’t make assumptions about the inevitable shape a developing child’s life will take. Justice White was quick to point out that while it’s more than likely that an Amish child “will wish to continue living the rural life of their parents,” others “may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary.” As such, the state has a crucial role to play in helping “prepare them for the lifestyle that they may later choose, or at least to provide them with an option other than the life they have led in the past.”

But if this is so central to the purpose of public schooling, why let these students opt-out? The court decided that the difference between an eighth grade education and a tenth grade education was so slight that the state couldn’t justify interfering with the families’ (but, more importantly, the children’s) religiously-informed convictions.

This finding, then, is much more limited than what parents’ rights advocates would have us believe. There is no broad license granted. There exists no basis for parents’ expansive and inviolable rights. There is no precedent in favor of parents picking and choosing which educational line items to approve and which to discard. Growth and development are stunted in insular settings; learning is about confronting the unfamiliar. Our commitment to consumer choice and rugged individualism blinds us to the role the village plays in raising our child, but that doesn’t make the proverb any less true.

Apart from the obvious practical problems with imbuing every parent with a veto right over school curricula, the belief that parents are best-positioned to judge the educational merits of scholastic programs disrespects the expertise of educators. There’s reason to doubt that parents possess innate knowledge of the intellectual and psychological needs of students better than teachers.

Ultimately, the battle cry of “parents’ rights!” fails to appreciate the person whose interests are actually at stake in these confrontations: children. Parents merely act as stewards of a child’s future until that youth herself becomes capable of exercising an autonomous will. While we often defer to parents because we think that mother or father might know best, this should not be confused with universal permission; there are very real limits to freedom parents can exercise in determining what’s best for their child. Despite often acting as guardians of their child’s individual interests, there are all sorts of issues where we do not grant parents final say. We limit parental authority to refuse medical treatment for their child, school children are required to have MMR vaccinations, and most states set homeschooling requirements regarding assessment, parents’ qualifications, and curriculum approval. Why? Because the state is obligated to protect vulnerable populations who cannot defend (or even express) their interests. It must oppose parental choices which threaten to constrain children’s future options or inhibit their growth and development. State intervention isn’t about reducing parents’ freedom but ensuring its future conditions for the child. (Consider the battle being waged over sex education in schools.)

In the end, we must recognize that public schools don’t operate to serve parents’ whims; they exist to ensure that children have the necessary tools to develop into fully autonomous adults. Certainly, parents enjoy the ability to impact their child’s education through electing school board representatives, voicing their opinions, and supplementing their child’s education, but they don’t have the right to demand that school curricula accommodate their personal worldviews and private desires. While there are legitimate causes and complaints, a ban on Toni Morrison’s Beloved cannot qualify.

COVID Vaccines and Primary Care

photograph of elderly man masked in waiting room

Dr. Jason Valentine, a general practitioner in Alabama, has decided to no longer treat unvaccinated patients. Starting October 1st, that is. At the beginning of August, Valentine’s clinic made the announcement, clarifying that his personal rule applied to both current patients and new patients. So long as you are unvaccinated, Dr. Valentine will not be seeing you. When asked why he was choosing not to treat unvaccinated patients, Valentine said “COVID is a miserable way to die and I can’t watch them die like that.” In Alabama, the state with the highest number of new COVID cases per day, such a sentiment is understandable. But is it ethical?

As most people know, doctors are bound by a creed called the Hippocratic Oath. The name of this oath comes from the historical figure of Hippocrates, a fifth century Greek physician, to whom the oath is traditionally attributed (although he was likely not the original author). The Hippocratic oath is the earliest-known source of many central idea of medical ethics that we still hold to today: e.g., the patient’s right to privacy, the obligation of the physician to not discriminate between the poor and the rich, and, most famously, the pledge to do no harm.

Doctors today continue to take a version of the Hippocratic Oath, though the oath has undergone major alterations in the past 2500 years. Still, the pledge to “do no [intentional] harm” remains. Major debates have been carried out historically over what exactly falls under the pledge to “do no harm” — that is, under what conditions are doctors guilty of breaking their oaths? More specifically, is Dr. Valentine breaking the Hippocratic Oath by refusing to see unvaccinated patients?

One argument for thinking that Valentine is breaking his oath is that refusing to see unvaccinated patients constitutes an illegitimate act of medical discrimination. Medical doctors have, historically, been stoically determined to ignore unpalatable particulars about the individuals they were treating. For example, during the Civil War, doctors in both the Union and the Confederate armies treated soldiers injured on the battlefield, regardless of their allegiance (excluding, sadly, Black soldiers on either side). During the second World War, British surgeons operated on Nazi prisoners of war, in many cases saving their lives. Under the Geneva convention, doctors are bound to treat soldiers from their army and enemy soldiers impartially — enemy soldiers are not to receive worse treatment or a lower medical priority because of their military allegiance. Surely, then, if the Geneva convention would forbid a doctor to refuse to see patients who were Nazis, it would prevent doctors from refusing to treat patients who had not received a vaccination for a dangerous and highly-contagious disease?

But there is legal precedent that complicates this verdict, as well. Specifically, doctors are allowed to, and do frequently, refuse to see children who have not received their recommended childhood vaccines and do not have a medical reason barring them from receiving vaccines. Reasons for these policies often include considerations of the extreme vulnerability of other patients that the voluntarily-unvaccinated may encounter in the office, including young children who are immunocompromised and babies who have not yet received all of their vaccines. Another consideration is that many childhood vaccines prevent infection from nearly eradicated diseases like the measles. When children are not vaccinated against these illnesses, breakthrough cases stand a higher chance of spreading, thereby resurrecting an almost defeated enemy.

For these reasons, one may be inclined to praise the doctor’s choice. Surely, if people are barred from seeing their general practitioner, this might motivate the unvaccinated to receive the vaccination, and undo some of the damage done by rampant misinformation regarding vaccine safety and efficacy. However, consider a (hypothetical) doctor who refused to treat patients who drank too much alcohol, or refused to exercise. In these cases, doctors would surely be seen as refusing to do their primary job: assuring the health of their patients to the best of their (possibly limited) abilities. Some philosophers, like Cass Sunstein, refer to actions and laws like these as “paternalism”: acts of mild coercion for the sake of protecting the coerced, are sometimes seen as acceptable — seatbelt laws and cigarette taxes are commonly-accepted paternalistic laws aimed at mildly coercing safer behavior. But when the coercion becomes harmful, or potentially harmful, these measures are generally seen as morally impermissible. For example, holding someone at gunpoint until they throw away all of their cigarettes may be incredibly effective, and maybe even good for the smoker in the long-run, but is surely morally wrong if anything is. The difference between paternalistic measures and harmful coercion is usually understood as a difference in potential harm and a difference in the degree of autonomy the coerced maintains. When laws increase the tax in cigarettes, smokers may be mildly financially harmed, but this generally will not amount to anything financially destructive. Generally, they retain the choice between either taking on a small additional financial burden or giving up smoking. In the gun-to-the-head case, the smoker no longer (meaningfully) retains a free choice. She must give up smoking or face her own death. Anything less than compliance, in this case, results in the most extreme kind of harm.

Clearly there will be many instances of coercive measures that fall somewhere between these two extremes. This raises a tough question for Dr. Valentine: does refusing to treat voluntarily unvaccinated patients constitute a case of permissible paternalism, or impermissible harmful coercion? One reason for thinking that such a decision may not result in real harm is the abundance of options of doctors that most people have access to. Surely needing to switch primary care doctors is merely an inconvenience, and not a significant harm. However, there are factors complicating this. Many people have insurance plans that severely limit what doctors they can see. Additionally, if Valentine is allowed to refuse unvaccinated patients, there is nothing stopping all of the doctors in his area from taking on the same rule. Someone may be effectively denied all medical care, then, if all local doctors decide to take up a similar rule. An inability to access a primary care doctor seems like a more severe harm than the instances of mild coercion in the cases of paternalistic cigarette tax laws.

There is no easy ethical analysis to give to Dr. Valentine’s decision. While we can surely sympathize with the protocol, and hope it leads to increased vaccination rates, we do not want large swaths of the general public living without a primary care doctor. Like many other aspects of COVID-19, ethicists here have their work cut out for them mapping brand new territory.

The DOJ vs. NACAC: Autonomy and Paternalism in Higher Ed

black and white photograph of graduation

Last month, the National Association for College Admission Counseling (NACAC) voted to remove three provisions from their Code of Ethics and Professional Practices. These changes will now allow schools to offer early-decisions applicants special considerations like priority housing and advanced course registration. Schools are also now allowed to “poach” students already committed to other institutions. And, finally, the May 1st National Candidates’ Reply deadline will no longer mark the end of the admissions process, as schools can continue to recruit into the summer. Together, these changes threaten to drastically alter the college recruitment landscape, and it’s unclear whether those changes will be positive or even who the beneficiaries might be.

NACAC’s move to strike these provisions was motivated by a two-year inquiry by the Department of Justice into antitrust claims. The prohibition on universities offering incentives to early-decision students and wooing already-committed recruits was deemed anti-competitive and a restraint of trade. NACAC was given a straightforward ultimatum: strike the provisions or engage in a legal battle whose only likely outcome would be being dissolved by court order.

As Jim Jump suggests, the DOJ appears to see NACAC as a “cartel” — coordinating behavior, fixing prices, and cooperating so as to insulate themselves from risk. From the DOJ’s point of view, NACAC is merely acting in the best interests of institutions, and prevents students from getting the best economic deal possible on their education. By prohibiting certain kinds of recruiting and incentives, NACAC limits competition between institutions for the industry’s gain and students’ loss.

The DOJ’s perspective is purely economic: The price of attending college has been increasing eight times faster than wages. Demand for education is at an all-time high, the need for student services is ever-increasing, and state-funding hasn’t been responsive to growing student numbers and institutions’ swelling size. Rather than increase government subsidy of higher education, the hope is that increasing competition between providers may drive costs down for consumers. The DOJ’s position is simple: “when colleges have to compete more openly, students will benefit.”

In response to these allegations, NACAC supporters claim that the rules are designed to safeguard students’ autonomy. By prohibiting institutions from poaching or offering better early-decision incentives, NACAC’s provisions shield impressionable high-schoolers from manipulation and coercion. Should colleges be permitted to offer priority housing or advanced course registration to early applicants, over-stressed teenagers will only be more likely to make their college choices prematurely. Should universities be allowed to court newly-matriculated students only just adjusting to college life, susceptible youths will always be swayed by the promise of greener pastures. In the end, these paternalistic measures are intended merely to preserve the possibility of effective student agency.

But, to many, treating prospective college students as vulnerable on the one hand, and competent and self-sufficient on the other, seems disingenuous. The average student debt is $38,000; if applicants are old enough to incur such large financial burdens, then surely they are old enough to navigate the difficult choices between competing financial and educational offers. As consumers of such high-priced and valuable goods, it should not be within others’ purview to doubt the truth, rationality, or sincerity of prospective students’ expressed preferences.

What the DOJ ruling may be missing, however, is the particular value for sale that makes the marketplace for colleges unique. As DePauw’s Vice President for Enrollment Management, Robert Andrews, argues, “There are real drawbacks to making your educational decisions like you would make your purchasing decisions around less-intricate commodities.” By reducing a college education to a simple dollar amount, we ignore the larger value a college education and the formative role it can play in students’ lives. It’s difficult to accurately assess in retrospect, (and certainly predict beforehand,) the meaning “an undergraduate education and the developmental experiences that occur when 18-22 year-olds live and learn on a college campus” will have, as well as all the factors that made that experience possible. As such, relative cost should perhaps not be billed as the crucial factor. Unfortunately, Andrews argues, striking these NACAC guidelines, prioritizes the wrong thing:

“Students may be enticed by larger scholarship and financial aid packages and choose a school they had previously ruled out for very valid reasons, (i.e. size, academic offerings, availability of student services, etc.) thus putting their successful educational experience in serious jeopardy. Will saving $5,000 more per year mean anything if it takes a student 5-6 years to graduate when they could have made it out in 4 at the “previous” institution?”

At bottom, the disagreement between the DOJ and NACAC centers on whether consumers know best their own interests. In particular, the question is whether NACAC is better-positioned to anticipate students’ needs than the students themselves. Folk wisdom claims that “You cannot harm someone by giving them an option,” and we must decide whether prospective college students represent a vulnerable population that needs to be protected from choice. Is the very possibility of new financial and educational incentives enough to undermine and override students’ true preferences? Does a policy of general prohibition on financial incentives support or frustrate those core preferences?

As of yet, whether the removal of NACAC’s guidelines will deliver positive or negative consequences for students, institutions, and higher education in general can’t be seen. Prophecies are in no short supply, and college administrators are desperately trying to anticipate how the new “Wild West” will play out.

When Your Will Is Not Enough: Ethical Restrictions on Entering into Agreements

CRISPR image

A 43-year-old with a deadly skin cancer is asking doctors to use the recent developments in CRISPR to experiment with treatments that may help him as well as advance medical understanding. Malakkar Vohryzek is offering to be a test subject, contacting a number of researchers and doctors asking if they would be interested in modifying his genetic code. Such treatment falls well outside approved parameters for human exposure to risk with the gene-editing technology, but the potential patient seems to be providing straightforward consent. In medicine and law, however, consent is often not enough. Currently the international scientific community remains critical of researchers in China that edited the genes of twin children last year, saying that such interference was premature and that the understanding of CRISPR and the impact on human subjects was not advanced enough for such research (for discussion see A.G. Holdier’s “Lulu and Nana: The Surprise of Genetically-Modified Humans”). Vohrysek’s case is interesting, though, because with a terminal illness and clearly expressed desire, why stick to standards that aim to promote and protect a subject’s welfare? If Vohrysek is willing to risk his health (what is left of it given his illness), why should doctors and researchers hesitate to proceed?

The ethics surrounding agreements or contracts incorporate a number of dimensions of our agency and the way we relate to one another. These standards attempt to take seriously the import of being able to direct one’s own life and the significance of the harm of manipulating the lives of others.

Paternalism is the term used to describe efforts to promote others’ best interests when those actions run counter to their expressed wishes. In such cases, someone believes that if a person’s will were effective, it wouldn’t promote what is in their best interests, and therefore interference is justified. The standard case of paternalism is that of a parent who overrules the will of a child. Say, for example, a 5-year-old wants ice cream for dinner but a parent disregards this preference and instead makes the child eat a nutritious meal believing that this will be better for the child. Typically, we think parents are morally justified in disregarding the child’s expressed preferences in circumstances like these. But when, and under what circumstances, paternalism can be justified outside of these clear-cut parent-child cases is much less clear. In Vorysek’s case, there is something paternalistic about not prioritizing the autonomous choice he is communicating. In general, regulatory standards are meant to promote subjects’ welfare and interests, but Vorysek isn’t a child, so what countervailing reasons apply here?

One class of cases where paternalistic interference is typically considered justified is where there isn’t a clear of expression of an agent’s will to interfere with in the first place. We may interpret the parent-child case in this way: a child hasn’t developed their full autonomous capabilities, therefore superseding their expressions of will when it runs counter to their best interests doesn’t seem as problematic as thwarting the will of a fully autonomous, mature adult. Vorysek, and other patients facing terminal prognoses who knowingly choose to expose themselves to risk, seem to be in a different class than those whose illness or condition of life diminishes their autonomy.

One barrier to truly just agreements is an unethical power dynamic founded on asymmetric information. For instance, if one party uses legal understanding and jargon to obscure the stakes and conditions of an agreement so that the other party can’t fully weigh the possible outcomes that they are agreeing to, this is intuitively not a fair case of agreement. These concerns are relevant in many legal contracts, for instance in end-user license agreements that consumers accept in order to use apps and software.

Another arena where there is often an asymmetry of technical understanding is in physician-patient exchanges (for discussion see Tucker Sechrest’s “The Inherent Conflict in Informed Consent”). In order to get informed consent from patients, physicians must communicate effectively about diagnoses, potential treatment options, as well as their outcomes and likely effects to patients who frequently do not have the breadth of understanding that the physician possesses. If a doctor does not ensure that the patient comprehends the stakes of the treatment choices, the patient may enter into agreements that do not reflect their priorities, preferences, and values. This asymmetric understanding is also the ethically problematic dimension of predatory lending, “the practice of a lender deceptively convincing borrowers to agree to unfair and abusive loan terms, or systematically violating those terms in ways that make it difficult for the borrower to defend against.”

But there remain further ethical considerations even when mutual understanding can be assured. It’s true that only when both parties to an agreement have a full grasp of the stakes and possible outcomes of the agreement is there the potential for each to weigh this information against their preferences, priorities, and values in order to determine whether the agreement is right for them. However, this doesn’t exhaust all ethical dimensions of making agreements. We could imagine that the 43-year-old patient seeking un-approved CRISPR treatments to be in such a position he might understand the risks and not be mistaken about how the facts of the matter relate to his particular values, preferences, and priorities. What ethical reservations are left?

Exploitation refers to a type of advantage-taking that is ethically problematic. Consider a case where an individual with little money is offered $500 in exchange for taking part in medical research. It could be the case that this is the “right” choice for them the $500 is sorely needed, say to maintain access to shelter and food, and the risk involved in the medical research is processed and understood clearly and the person determines that shelter and food outweigh the risk. In such cases, the ethical issue isn’t that a person may be entering agreements without understanding or against their best interests. Indeed, this individual is making the best choice in their circumstances. However, the structure of the choice itself may be problematic. The financial incentive for taking on unknown risk of bodily harm is a thorny ethical question in bioethics because of the potential exploitative relationship it sets up. When financial incentives are in place, the disadvantaged portion of a population will bear the brunt of the risk of medical research.

In order to avoid exploitation, there are regulatory standards for the kinds of exchanges that are permissible for exposing one’s body to risk of unknown harm, as in medical research. There are high standards for such research in terms of likelihood of scientific validity – the hypothesized outcome can’t just be an informed “guess,” for instance. Vorysek likely won’t find a researcher to agree to run experiments on him for fear that terminal patients, in general, will become vulnerable to experimentation. As a practice, this may be ethically problematic because patients are a vulnerable population and this vulnerability may be exploited the ethical constraint on agreements can be a concern even when making the agreement may be both in the individual’s best interest and satisfying their will.

This, of course, leads to tensions and controversy. Should Vorysek and others in similar positions be able to use their tenuous prognosis for scientific gain? “If I die of melanoma, it won’t help anyone,” he said. “If I die because of an experimental treatment, it will at least help science.”


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The Inherent Conflict in Informed Consent

photograph of doctor's shingle with caduceus image

A recent study has drawn attention to the relatively poor medical reasoning capabilities of terminally-ill patients. When confronted with complicating factors, a group of terminal cancer patients demonstrated decreased appreciation and understanding of their prognosis in comparison to their healthy adult counterparts. More concerning, perhaps, is the study’s finding that attending physicians were not consistent in recognizing these deficiencies in competence. Ultimately, the study supports mounting evidence that the bright line we draw to separate individual autonomy from institutional paternalism is too simplistic. Patient competence is overestimated and physicians’ impact is underappreciated. These findings have important implications for our conceptualization of informed consent.

Informed consent is a process, made up of the many communications between a doctor and a patient (or clinical investigator and research participant). Details regarding the purpose, benefits, and risks of, as well as alternatives to, a given treatment are relayed so as to enable potential clients to deliberate and decide whether the medical intervention offered aligns with their interests. As a patient has all the freedom to decide what should or should not happen to her body prior to undergoing a clinical trial or medical procedure, the decision is to be made free from coercion; the doctor acts so as to facilitate patient decision-making. Achieving this requires adequate, accurate information be provided in terms the patient can easily understand.

Legally, informed consent represents a basic threshold of competency that a patient must be assisted in meeting in order to legally acquiesce to a medical procedure. It exists to safeguard bodily integrity — the right of self-determination over our bodies. It grants legal permission and protects healthcare providers from liability.

Morally, informed consent is a compromise between epistemic merits and welfare interests. Informed consent balances doctors’ medical expertise against patients’ unique knowledge of their preferences. While physicians might know best how to treat injury and combat afflictions, they are less equipped to make determinations about the kind of risks a patient is willing to take or the value she might place on different health outcomes. As patients must live with the consequences of whatever decision is made, we tend to privilege patient autonomy. Once properly informed, we believe that the patient is best-positioned to determine the most suitable course of treatment.

The trouble, as studies like this show, is that patients are not the autonomous healthcare consumers we assume them to be. They are often dependent on the doctor’s expertise and medical advice as many suffer from some combination of informational overload and emotional overwhelm. Patients’ weak grasp of their medical prognosis is offset only by the trust they have in their physician and a general deference to authority.

This means that informed consent is, in many cases, simply not possible. Patients who are very young, very ill, mentally impaired, or even merely confused are not capable of demonstrating sufficient competence or granting meaningful permission. Unfortunately, patient literacy is overestimated, communication barriers go undetected, and patient misunderstanding and noncompliance continues. Findings suggest that thorough assessment of patient competence is rare, and patients’ comprehension is questioned only in those cases where a patient’s decision deviates from the physician’s recommendations.

An increased focus on patient education may not be enough to combat these problems. Efforts to present information in a more accessible manner may bring some improvement, but there are many medical situations where the sheer complexity or volume of the information involved outstrips the decision-making capacity of everyday patients. Some types of medical information, like risk assessments, use probability estimates that would require formal training to fully appreciate and thus overburden patients’ capacity to adequately comprehend and reasonably deliberate. In such cases, no amount of dialogue would allow a patient to attain the understanding necessary for informed decision-making.

In the end, the possibility of an equitable doctor/patient consultation is rarely a reality. As Oonagh Corrigan explains,

“There needs to be a realisation that the type of illness a patient is suffering from, her anxiety about the likely trajectory of her illness, her expectations about treatment and, in general, her implicit trust in the doctor and medical science mean that ‘informed choices’ based on an adequate understanding of the information and on careful consideration of the potential benefits and risks, are difficult to achieve in practice.”

We cannot maintain our idealistic divide between autonomous decision‐making on the one hand, and autocratic paternalism on the other. From framing effects to geographic bias, a physician is bound to have a greater hand in decision-making than our common conception of the dynamic allows.

Some may say that this liberty is sufficiently curtailed by the Hippocratic Oath. A doctor’s duty to the health of a patient is thought to limit the possibility of abuse. But the physician’s obligation to do no harm offers little guidance on the ground. The duties of nonmaleficence and beneficence share no necessary tie to the particular social and cultural values of patients. They would, for example, recommend the administering of blood transfusions to patients whose deeply-held religious beliefs disallow it.

Finding a suitable middle ground between individual autonomy and institutional paternalism is particularly tricky. The territory of informed consent is already a political battleground. One need look no further than the dispute concerning mandatory pre-abortion counseling or talk therapy for transgender patients. While we may wish physicians to take a larger role in the care of those who genuinely lack capacity, this would inevitably lead to the silencing of legitimate interests. Any acceptable resolution of this tension is bound to be hard-won.