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The Ethics of the Elephant: Why Physician Participation in Executions Remains Unethical

be in existence. Further, whether a physician could actually constitute a “state actor” for the purposes of the cases seems dubious. “State actors” are typically defined narrowly, and they do not include those working independent of the state. Although it could be argued that the physician would be a state actor in his assistance of the lethal injection, this would seem counterintuitive. The purpose of the physician’s involvement is to have the appearance of safety, objectivity, and ethicality. Often, in fact, he or she does not affirmatively act but rather observes the injection. To suggest the physician is “acting” for a state, despite his or her independence and non-involvement, seems tenuous. But let us assume, for the moment, that Keane (2008) got it right. Assume the cases are perfectly on point in the context of lethal injections. This still does not explain why the physician’s obligation should be limited to co-victims. Could we not argue that Scott and its progeny are designed to protect the collective good? After all, the police officer “bumped” the felon’s car in order to protect bystanders and other drivers. In this vein, isn’t it conceivable that the physician’s involvement is, not for the sake of the co-victims, but for the sake of societal protection? Aside from the questionable legal bases, the use of “harm” in the article is ambiguous. In order to engage in “harms analyses,” it is necessary to evaluate the precise nature of the harm. What, in the context of lethal injections, is the harm? From the position of the co-victims, is the harm the delay of the injection or the failure to inject the felon at all? Is it the physician’s involvement at all? Further, would a felon’s prison sentence be an appreciably different harm than a lethal injection for the co-victims? Is the harm of similar or greater magnitude? Therefore, the precise nature of the harm is uncertain. It also is conceptually and practically difficult to extend the physicians’ obligation to do no harm to the co-victims. Indeed, the physician should do no harm to the patient (the felon, in this context) and society as a whole, but it is unclear why this obligation should be narrowly tailored to the co-victims. Should physicians always consider the interests of the family members, even if these interests contradict the interests of the patient or society? If this were the rule, autonomy and public harm would be in jeopardy. Even if the obligation to do no harm did extend to the co-victims, one still must balance the harms posed to the co-victims and that of society and the felon. If it is delay in the injection that constitutes the harm to the co-victims, as I believe the author contends, wouldn’t this be of little consequence in light of the harm incurred if the wrong person is executed? The harm to the co-victims must be balanced against the harm to the felon and society. The harm to the felon would be the loss of life or the failure to adhere to due process. The harm to society would be the injustice of executing the wrong person or, alternatively, the execution at all. The interests of society in assuring that justice has been done, and the interests of the felon in exhausting his appeal mechanisms, seem to outweigh any harm incurred by the co-victims in having to delay the execution. After all, arguably, the loss of life is the greatest harm of all.