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EUTHANASIA
The Bad Fruit of a Rebellious Age by Pat McEwen
In America today we have nurtured a "culture of death." The hemlock society is a major force in our cul ture, enticing people to take their own lives and even providing advice as to the best way to commit suicide. Older people flock to the warm climate of Florida (where LCI is headquartered) so this state is a inviting feed ing ground for the wolves of the hemlock society. In a state where much of the population is aging and there is not an abundance of young workers entering the workforce, cities and state governments worry about the tre mendous cost of caring for an aging population. Many of the older population is bitter because they see "the handwriting on the wall." The federal and state retirement programs that they contributed to all their working years are now in a shambles and there in no security in retirement. The younger population is angry because they feel they are being taxed to death and cannot provide for themselves with the heavy weight of taxation. This is the climate in which the "death agenda thrives." Why is it so? What happened? Who mismanaged funds etc.?
In Deuteronomy, the Lord set out some guidelines for success. In order to prosper and have a fruitful old age we must obey God's commandments..
"Then the LORD your God will prosper you abundantly in all the work of your hand, in the offspring of your body and in the offspring of your cattle and in the produce of your ground, for the LORD will again rejoice over you for good, just as He rejoiced over your fathers; if you obey the LORD your God to keep His commandments and His statutes which are written in this book of the law, if you turn to the LORD your God with all your heart and soul” Deut. 30:9-10 NAS
And what are those commandments we needed to keep? God gave ten to Moses on Mount Sinai. God com manded, "Thou shalt not kill" Ex. 20:13 KJV
If you have a problem with applying Old Testament scripture to today, Jesus summed up the ten into two in Matt 22:37-39. "YOU SHALL LOVE THE LORD YOUR GOD WITH ALL YOUR HEART, AND WITH ALL YOUR SOUL, AND WITH ALL YOUR MIND. This is the great and foremost commandment. The second is like it, YOU SHALL LOVE YOUR NEIGHBOR AS YOURSELF." One docs not kill a neighbor one loves!The Lord |
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made it very clear for us.
"See, I have set before you today life and prosperity, and death and adversity; in that I command you to day to love the LORD your God, to walk in His ways and to keep His commandments and His statutes and His judgments, that you may live and multiply, and that the LORD your God may bless you in the land where you are entering to possess it" Dcm 30:15-16 NAS
“I call heaven and earth to witness against you today, that I have set before you life and death, the bless ing and the curse. So choose life in order that you may live, you and your descendants” Deut 30:19 NAS Euthanasia is the natural fruit of a nation that does not "choose life." When a people becomes hard hearted and stiff-necked, thinking only of self, they will suffer. Economists can tell you that all the programs that pro duce "the good life" are dependent on an ever increasing young workforce. The fruit of years of abortion on demand is a nation where there are less entering the workforce than leaving. This creates an economic situation that can only fail. We should have foreseen what our selfishness would produce but we did not. In fact, many misguided people are still harping about a population crisis.
We do have a population crisis. There are not enough people. People create prosperity not poverty. Large populations of young workers and consumers provide markets for the world goods and food to feed the weak and old. We have aborted our future and now must kill the old. We are out of the will of God and killing our children and our grandparents. There is no solution but what is laid out in the "Master plan-book." It is too late for a "band- aid" fix for the world situation. We must be obedient and turn to the Lord in prayer and fast ing.
"and My people who are called by My name humble themselves and pray, and seek My face and turn from their wicked ways, then I will hear from heaven, will forgive their sin, and will heal their land.” 2Chr.7:14
The Ethical Approach Of Life In A Culture Of Death And What Lies Ahead?
W.J. Eijk
Discussions on whatever issue often reach a deadlock when the terms used are not well defined from the beginning. This especially applies to discussions on euthanasia in Holland, where the terminology in this field is quite particular. Therefore, I will begin this conference clarifying the terminology used.
In the Netherlands, euthanasia means the voluntary termination of the life of a patient who is suffering from a life-threatening and incurable somatic disease. Medically assisted suicide is defined as a person terminating his life with means put at his disposal for that purpose by his physician, because he does not wish to continue it; e.g., because of a mental disorder. Killing a sick person without a request on his part or without his knowledge is not termed euthanasia, but described as active termination of life without request. This is essential to understand for our American guests, because in the United States euthanasia mostly means termination of life without the request or the knowledge of the person involved, while the term 'medically assisted suicide' is reserved for what is often simply known as euthanasia in Holland, without the addition of the adjective 'voluntary'
This enables us to report some statistical data, giving an impression of the extent of the erosion of the respect for the intrinsic dignity of human life.
Some Statistical Data
It is not surprising that the Netherlands has been the first country in Western Europe to have a legal regulation regarding euthanasia because euthanasia is widely accepted here. One of the conclusions from a survey conducted on behalf of the Remmelink Commission in 1990 and 1991, was that 88% of Dutch physicians consider active euthanasia permissible in principle. Fifty-four percent (54%) had actually committed active euthanasia and 34% stated they would honor a request for euthanasia. Only 12% stated they would not comply with such a request under any circumstances. 2
Outside the Netherlands, the percentage of physicians who consider euthanasia permissible is quite different. In Belgium it is 54%, while 46% agrees with the thesis that active euthanasia is never acceptable (1993), 3 while in France 49% (1990),4 in Luxembourg 72% (1993),5 and in Great Britain 30% of the general practitioners agreed with the concept of voluntary euthanasia (1987).6
Outside Europe, the same tendency exists. Polls of physicians in South Australia in 1991, revealed that 45% of the interviewees agreed with legalization of active euthanasia, while 19% had already actually terminated the lives of the terminally ill. 7 Euthanasia appears increasingly accepted in all rich countries with high technology. The inquiries cited show that the percentage of doctors accepting active euthanasia will rise in the future. In Belgium, this percentage is at present 61% among the doctors under 45 years independent of one another and characterized by a serious lack of solidarity, leaves the individual alone with his problems. Because of this lack of solidarity and the lack of religious convictions which gives true meaning to human life, individuals are unable to cope with their suffering.
Our society is mainly interested in efficiency and consequently tends to confuse ethical values with usefulness. That leads to utilitarianism, considering life only to be of value if it guarantees a career, joy, social contacts and offers the individual the possibility to do whatever he likes. In other words, it only considers human life to have instrumental value, i.e., having value as long as it serves to gain something. It would, however, not have a value of its own.
Add to this the view of the autonomous ethics that because of the lack of objective norms and values in our pluralistic society, the individual has to decide about his own norms and values, and the circle is complete. If the individual thinks that his life does not serve his purposes any more, he is entitled to terminate it or ask somebody else to do so.
The unborn child, the neonate or one in a protracted coma would be human beings, but no longer human persons with autonomy because they have no rational activities and lack the capacity for human social communication. Others would then have the right to decide on their behalf. Actually, this is a perversion of the concept of human freedom.
All these factors have contributed to the development of the present culture of death, described by John Paul II as follows:
"This culture is actively fostered by powerful cultural, economic and political currents which encourage an idea of a society excessively concerned with efficiency. Looking at the situation from this point of view, it is possible to speak in a certain sense of a 'war against the weak': a life which would require greater acceptance, love and care is considered useless, or held to be an intolerable burden, and is therefore rejected in one way or another. A person, who, because of illness, handicap or, more simply, just by existing, compromises the well-being of a lifestyle of those who are more favored tends to be looked upon as a enemy to be resisted or eliminated. In this way, a kind of' ‘conspiracy against life' is unleashed." (Evangelium vitae hr.)12
The Ethical Approach
The new Dutch euthanasia regulation reflects the view of human life as having instrumental value. Though implying that euthanasia, assisted suicide, and the active termination of life without request remain formally forbidden, this regulation of euthanasia enables the physician who commits any of the aforementioned acts to use the defense of force majeure which here implies a form of 'necessity'. This necessity is defined as a conflict of duties. On the one hand the physician has the duty to respect the legal protection of life as required by the Criminal Code. On the other hand, there would be the duty to relieve the patient's suffering. These two duties would conflict when the usual means to alleviate suffering are exhausted and that suffering consequently could only be taken away by terminating life.
If it can be established that someone has acted through necessity, he is supposed to have served a higher interest of justice and therefore not to have contravened the law. Consequently, an appeal to a defense of necessity is considered a justifiable ground to act. The exact conditions required according to present jurisprudence in order to make a successful appeal to the defense of necessity will be the topic of one of the other conferences this morning.
Firstly, we could wonder whether the duties that are supposed to conflict here, have been correctly identified. The duty to preserve life is set against the duty to relieve suffering. Strijards, a consultant at the Ministry of Justice, discussing the above-mentioned verdict of the Supreme Court in the Chabot case, has argued that these duties have not been correctly formulated. Actually, the duty to preserve life should primarily be set against a 'duty to kill':
"Defaming the duty that conflicts with the duty to preserve life, it [the Supreme Court, WJE] speaks of a duty to 'relieve'. But that duty is not the contrasting duty which causes the acute conflict from which the perpetrator cannot free himself but by breaking the penal statute. That duty can only be defined in one way: it is a duty to kill." 18
Thus far, however, the Supreme Court has not argued that Dutch law would recognize a duty to kill, this being incompatible with the maintenance of the formal criminality of the active termination of life. Neither has the existence of a duty to kill been denied, because that would render impossible an appeal to the defense of necessity. The impreciseness of the conflicting duties concerned discloses the weaknesses of Dutch euthanasia regulation.
The key question is, however, whether the physician who performs euthanasia is acting out of force majeure in the form of a necessity and thus serving the higher interest of justice. An optician who helps a client with damaged glasses after closing time, must on the one hand respect the Law governing the hours of trading, but on the other hand he may rightfully consider it his duty to help his client. In fairness it may be concluded that staying after hours is serving a higher interest of justice. The idea that cessation of suffering can be a higher interest of justice than the life of a human being is only tenable if it is accepted that the active termination of life in the form of euthanasia and assisted suicide implies the giving up of an instrumental good which may in certain cases be justified by a proportionately higher goal.
No doubt that our spectacles are an instrumental good. I can exchange them for other spectacles or lenses. However, does the same apply to the physical life of a human person? Our physical life could only have instrumental value if the body would be something accidental to the human condition. Many ethicists do think so, viewing, as we have seen above, some spiritual functions as rational activity with the capacity for social communication as the human persons and human body as something extrinsic to him. The human body would thus be a manipulatable object.
The point being, that according to Biblical anthropology as well as to a sound metaphysics philosophy, humans are not only of spirit but are a unity of spirit and body. This simply implies that the body is an intrinsic part of the human persona, consequently participating to the dignity of human life. In dominating the body, one dominates the person himself. Using the body as a pure instrument in medical experimentation or genetic engineering, necessarily implies that the person himself is reduced into an instrumental object. In the same sense, rejecting the body in euthanasia would imply not only a judgment on the intrinsic value of the human body, but also against the person himself. However, the human person is not a utensil, but, being in the image and likeness of God and having his ultimate end in Him, is value in itself (Genesis 9:6). Therefore, no one has the right to reject his own physical life, nor the lives of others by performing active euthanasia.
Adversaries of abortion and euthanasia often refer to the right to life. Man has a basic inalienable right to life, implying that he may not be slaughtered, at least when he is presumed innocent. Those who take the principle of autonomy as a point of departure, often reply that the right to life also implies that man may decide to end his own life if it has lost worth in his own eyes. Thus, they conceive the right to life as the right to dispose of life. We should however, bear in mind that the term right covers various meanings; the right of use, the right of usefulness, the right of ownership, or the power of disposal.
The right to life obviously implies that man has the right to use and to manage his physical life. Otherwise, he would not be able to realize the goals for which he exists. That man would own his life or have the right to dispose of it in whatever way he likes, is incompatible with the belief in Creation. God created humankind out of nothing and keeps us in existence from moment to moment. Moreover, if man could dispose of his own life, that would mean that he could ultimately submit it to any self-elected end. This would however contradict the ultimate end for which man exists, namely his union with God.
Man is contingent on God for his existence. Life is a gift from God (Psalm 139:13-18; Job 10:812; 2 Mark. 7:22-23; ) of which man has no full dominion. He cannot simply return it at a self-chosen moment. The whole human person, including his life and death, remains under God's Lordship "... there is no God beside me; I kill and I make alive ..." (Deuteronomy 32:39). Consequently, man does not have the 'right' to dispose of his life for it belongs to God alone!
Ethics and State Law
Proponents of the Dutch euthanasia regulation for the most part found among Christian Democrats, have claimed that the formal potential for punishment would ensure that the practice of euthanasia could at least be controlled to a certain extent. Therefore, it would be preferable to a direct legalization of euthanasia as proposed by the Democrats '66, a left wing liberal party. Immediately after the publication of Evangelium vitae, they thought they recognized a papal support for their point of view in hr. 73 of this encyclical. Here, the Pope calls the attempts of politicians in some countries to replace a liberal abortion law by a more restrictive one legitimate, implies that they have to vote for a law permitting procured abortion, albeit to a more limited extent: "A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage or a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on ... when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official whose absolute personal opposition to procured abortion was well known, could licitly support proposals aiming at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit co operation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects." (Evangelium vitae n. 73)
The party chairman (Helgers) of the Dutch Christian Democrats, interpreted this as recognition of the attitude of his party towards the legalization of procured abortion at the beginning of the 1980's, supported by the Christian Democratic members of Parliament with only one dissenting, and the recent discussion on euthanasia. In a review of his of Evangelium vitae, the Former Minister of Justice wrote: "No contradiction exists between the encyclical and the decisions of the Dutch legislator." .Is this true?
Notwithstanding the claim that maintaining the formal potential for punishment would make euthanasia more controllable, in practice, however, this does not appear to be the case. Though it is a universal rule in all legal systems that the perpetrator of a crime is not obliged to turn himself in, the most important means of controlling the euthanasia practice is the reporting procedure. However, three-quarters of the general practitioners and two-thirds of the specialists do not report the active termination of life! The present Minister of Justice Sorgdrager and Minister of Health Borst have acknowledged that, though the number of medical doctors reporting increased slightly in 1994, too many of them are still not following the reporting procedure. Few of the possible shortcomings in the practice of euthanasia and assisted suicide find their way into the courts? From an analysis of the reports by physicians in the Province Noord-Holland, it appears that since 1984 no actions have been brought.
"The reason why no action is ever brought is undoubtedly primarily because physicians, when informed of the due care to be taken, only report those cases where they can be virtually certain that they will not be prosecuted.., and if physicians do report, they tend to present the case in such a way that it fits better within the requirements of due care. 25
Owing to this difficulty, a new survey comparable to that of the Remmelink Commission in 1990 will soon be started to evaluate the euthanasia reporting procedure. The publication of the results is expected by September 1, 19967
Developments in the Netherlands in the 1980’s are a warning that liberalizing the law in this area does not make the practice more controllable. During then and the early 1990's, these judicial guidelines were only applied when a patient suffering from a life-threatening and incurable disease whose death was to be expected within not too long a period of time, was killed at his request. However, in principle the Dutch regulation of euthanasia also allows the active termination of life without request and assist in suicide. In its ruling of June 21, 1994, regarding the case of Dr. Chabot, a psychiatrist who assisted a fifty-year old woman with depression to commit suicide, the Supreme Court, though not discharging Chabot, did not in itself dismiss an appeal to the defense of necessity in assisted suicide, even when the patient was not suffering from a somatic disease and was not in the terminal dying phase.
On April 26, 1995, the Court of Alkmaar and on November 7, 1995, the Court of Justice of Amsterdam both accepted the appeal to necessity of a gynecologist in Purmerend, who terminated the life of a newborn girl with hydrocephalus, spina bifida, and spinal cord lesion, discharging him. Similarly, the District Court of Groningen discharged a general practitioner who had terminated the life of a 26 day old girl with Trisomie 13 last October.
Despite many restrictions initially and the claim that people are acting with due care, once the principle that human life has intrinsic value is abandoned, one finds oneself on a slippery slope.
Conclusion
Man's character is partly formed by his acts. A repetition of morally good acts results in virtue, the opposite in vice. What will the effect of the acceptance and regular performance of euthanasia be on medical doctors, nurses, the families involved, and society as a whole? We can reasonably expect that attitudes towards life, the terminally-ill, and the severely handicapped may change in the end.
For their professional code, the monk physicians of the early Middle Ages often referred to the parable of the Good Samaritan (Luke 10:29-37) who was willing to interrupt his itinerary, and take care of the wounded man lying helpless along the road. In this sense, we should also be prepared to lend every possible assistance to the sick, not concerning ourselves to merely technical care, but dedicating our time and resources to them and treating them with compassion. Where patients themselves ask that their life be ended, we must bear in mind that such requests are often an expression of extreme desperation, and are, in fact, an appeal for human support and attention. , and friends from a wider circle. The child lays an emotional claim on the parents: "I belong to you!" A period of strong ambivalence in the relationship between parents and child follows. Many parents show feelings of rejection. They wish that their child would die, although only a few dare to think it or actually utter such a wish. It is important that immediately after birth in the obstetric setting, such aspects are given attention.
The rejection or denial attitude of parents when their child proves to be handicapped has been described extensively. Doctors are trained to lead parents through this phase. It is sad now to see that time and again doctors themselves show such behavior. Handicapped children disappear too quickly out of attention and most often palliative care is insufficient. In the final phase of despair the child is 'delivered from its suffering' by killing it. But careful consideration whether better alleviation of suffering is or would have been possible, gets little attention. Discussions are now more confined to the question of whether 'the procedures' around the death and the act of killing are followed correctly.
In December of 1995, an important symposium was organized in the Wilhelmina Ziekenhuis, On the Verge of Life and Death, attended by doctors, lawyers and ethicists. Big and essential differences could be noted.
One speaker argued that the four criteria of pediatricians as published in the book, Doen of Laten? (To Do or Not to Do) - namely criteria for the treatment of children including ending their lives, could not be used for discussions in order to select those to be saved and those to be given up since their conditions can be altered after birth and the degree a child is dependant on care and cure is a matter addressed after birth. Moreover, pediatricians are not trained to judge the possibilities of the mentally handicapped's ability to communicate, one of the foremost criteria.
Another speaker mentioned that it could possibly be necessary to bring about the death of a child not in the dying phase, if its future would consist of being nursed in one of the severest departments of a generally known institute for mentally handicapped persons. He also got to answer the question whether or not all the patients now already housed there should not also be killed. His answer was no. But, it would be preferable to end the lives of these newborns "because life will be worse than death". Why then, withdraw such 'charity' to someone who is already in that position? It makes no sense.
Moreover, handicaps are many times described by doctors as far more serious than they are experienced by the patients themselves. So a professional in pediatrics gave a testimony in court regarding children with Downs Syndrome as a "pool of dreadfulness" when in fact, many of these children can bring great joy to their families.
In the course of the day it became more and more clear that some of those present wished that handicapped children should die, not only the babies, but also older children. So, when speaking about a severely mentally handicapped child of about three years old with pneumonia, it was said, "Let us be honest, we would very much prefer that the child dies as a result of this pneumonia." Others, however, would have tried to find the means to combat pain and relieve the tightness in the chest with normal treatments.
In the discussion, a clear distinction between 'the handicap' and 'the handicapped fellowmen' failed to a great extent. What came forth was a feeling of undesirability of the child/person with that handicap.
All pediatricians in the Netherlands agree that treatment should only take place if and when treatment offers possibilities for cure and/or care, otherwise it becomes ill-treatment. Pediatricians, however, disagree among themselves whether the killing of handicapped children is an option. Besides this, an increasing number of pediatricians consider relieving pain, though possible, not really meaningful. They prefer killing instead.
The discussion goes on. Let us see to it that all aspects will be heard as we fight for life to prevail.
Drs. G. van Bmggen, M.D.
This translation of an article in the Dutch Journal, PRO VrrA HUMANA, No. I, 1996 was presented to the conference.
The Euthanasia Debate Today
Richard M. Doerflinger
'Euthanasia,' from Greek words meaning a good or easy death, has taken on a very different meaning today: The killing of a patient by his or her doctor.
Some people draw a distinction between euthanasia (active killing by physicians) and physician-assisted suicide (prescribing or pro viding lethal drugs for the patient to self administer). But the intent, that of causing the patient's premature death, is the same; the means, a lethal drag overdose, is the same; and as Derek Humphry, founder of the Hemlock Society, has acknowledged, allowing assisted suicide inevitably forces us to consider allowing active euthanasia. Humphry says that suicide by oral overdose goes badly about 25% of the time, so a doctor should be standing by in every case '-to administer the coup de grace if necessary."- Even recent court rulings favoring assisted suicide have found no real distinction between the two practices. So for all practical purposes, we can treat assisted suicide and active euthanasia together.
How are we faring in our straggle against legalized euthanasia? Until very recently, not too badly. Consider the following: The voters of Washington (in 1991) and California (in 1992) defeated referenda designed to legalize euthanasia. In November 1994, Oregon voters narrowly approved a measure to legalize assisted suicide, 51 to 49 percent; but it was enjoined by the federal court and has never gone into effect. More importantly, despite predictions to the contrary, efforts to expand the Oregon agenda to other states have been a dismal failure. In 1995 and the first half of 1996, bills like Oregon's were introduced in at least 15 states, but all were defeated. Some state legislature allowed these bills to die without a hearing. Even states carefully chosen by euthanasia groups as ideal battlegrounds defeated such bills by lopsided margins: 6-to-1 in a committee of the New Mexico legis lature (even though the state medical society refused to oppose the bill); 256-to-90 in the New Hampshire House of Representatives. In fact the only new laws being enacted on this issue are laws that absolutely ban assisted suicide. Iowa became the 34th state with a specific ban on assisted suicide on March 1, 1996; at this moment Rhode Island seems poised to become the 35th, differently worded bills having been overwhelmingly approved in both House and Senate.
Finally, until a few weeks ago, no jurisdiction in the country had a court ruling recognizing any 'right' to assisted suicide. Indeed, three courts had recently ruled that there is no such right; a three judge panel of the Ninth Circuit Court of Appeals (upholding Wash ington state's law against assisted suicide); a U.S. District Court in New York (upholding that state's similar ban); and the state su preme court of Michigan. And a federal judge had ruled that Oregon's new law selectively allowing assisted suicide for the termi nally ill violated constitutional guarantees of equal protection under law.
The Appellate Rulings
Into this rather promising situation, two federal appellate court decisions this spring fell like hand grenades tossed into a hospital ward. Having failed almost universally to win the support of the American people and their elected representatives, euthanasia sup porters stepped up their efforts in the federal courts and won two resounding victories. On March 6 an eleven judge panel of the Ninth Circuit Court of Appeals voted 8-to-3 to knock down Washington's ban on assisted suicide as it applies to terminally ill adults, argu ing that the Due Process clause of the 14th amendment guarantees the "right" of such patients to receive "life-ending medication" to hasten their deaths. (An odd choice of words: If lethal poison is 'medication,' the disease it 'cures' must be life itself.) On April 2, the Second Circuit Court of Appeals denied the existance of such a fundamental right, but still knocked down New York's law against assisted suicide. Here the argument was that there is no "rational basis" for banning the prescribing of lethal drugs to terminally ill patients, when the State already recognizes their right to hasten death by refusing unwanted medical treatment.
These two rulings are worth reviewing because, far from striking a blow in favor of assisted suicide, their logic shows very clearly why our society should never start down this path.
The Ninth Circuit Ruling in Compassion in Dying v. Washington
The lethal inevitability of euthanasia's 'slippery slope' is most glaringly evident in the Ninth Circuit decision. Knocking down tradi tional distinctions between withdrawal of medical treatment and killing, the court defines a new constitutional right to assisted sui cide for all "terminally ill, competent adults who wish to hasten their own deaths." 2 At first there seem to be three limits on this right:
It applies only to assisting a suicide, so the patient himself has to administer the drugs; it must be by a competent adult's own volun tary decision; and it applies only to the terminally ill. The court then proceeds to take each of these limits away, one by one.
First, the court admits that "it may be difficult to make a principled distinction" between assisting a patient's suicide and simply in jecting that patient with lethal drags. "We would be less than candid." says the court, "if we did not acknowledge that for present purposes we view the critical line in right-to-die cases as the one between the voluntary and involun tary termination of an individual's life ... We consider it less important who administers the medication than who determines whether the terminally ill person's life shall end." 3 So ends any firm barrier against lethal injections by physicians; instead we are to rely on the voluntariness of the patient's own decision. That is the next limit to disappear.
Second, the court notes approvingly that life-sustaining treatment is withdrawn from incompetent patients by surrogate decision-makers all the time. These surrogates may be family members, proxies appointed by the patient, or even guardians appointed by the State. The court transfers all this delegated decision-making over to the euthanasia context: "Finally, we should make it clear that a decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself." 4 So the 'voluntary decision' safeguard is gone as well: 'Substituted judgement' and other doctrines will be used to decide that incompetent patients should be killed, and those decisions will be treated as though they came from the patients themselves. The court notes that some surrogates may make decisions based on unworthy motives, or even for economic reasons -- but it says this also happens in decisions to withdraw treatment, so it should not slow us down in approving this new 'right.' In any case, the court says, the risk of abuse here is greatly reduced because these patients are terminally ill and "will die shortly in any event." 5 So the final barrier to widespread killing is the restriction to patients who are truly terminally ill.
Third, this final limitation drops away when the court defines what it means by 'terminally ill.' It notes that there are many different definitions in over 40 state laws, and that some of these laws define the term "without reference to a fixed time period." For exam ple, some laws define it to include people in a coma or 'persistent vegetative state' even if they could survive for many years with continued feeding and nursing care. Of special interest to the court is the Uniform Rights of the Terminally Ill Act, which defines a condition as 'terminal' if it will lead to death in a relative short time "without administering life-sustaining treatment." Anyone who needs medical assistance to continue living, a diabetic who needs insulin, or a physically disabled person who needs a ventilator to assist breathing -- could be seen as 'terminal' under such definitions. The court decides that "all of the persons described in the vari ous statutes would appear to fall within an appropriate definition of the term?
So much for any meaningful restriction to cases of 'terminal' illness. Combined with the other expansions of the 'right' outlined above, this new definition of 'terminal' lays the groundwork for giving lethal injections to patients who are helpless and incompetent (therefore 'terminal' in this new sense) who never asked for death, based on the wishes of proxies or state appointed guardians.
The Second Circuit Ruling in Quill v. Vacco
The Second Circuit Court of Appeals does not draw out these same consequences so openly. Yet its analysis clearly sets the ground work for the same expansions of the fight to kill. It does so by congrueting an 'equal protection' argument: Terminally ill patients who are on life support now have a right to hasten their deaths by refusing that support; but terminally ill patients who are not sick enough to need such artificial support cannot presently enjoy that same right, because there is nothing for them to refuse so they can die. Therefore the State must allow them to exercise their right to hasten death by receiving lethal drags from their doctors. 7
There are many flaws in this analysis, to say the least. Among other things it seems to imply that your right to receive lethal drugs is stronger the healthier you are -- for only the completely strong and healthy person can be sure that he will need lethal drugs (and not a mere refusal of outside support) in order to exercise the coveted "right to hasten death."
But the central confusion in this ruling is the denial of any "rational" difference between refusing unwanted or burdensome treatment and committing suicide. To be sure, there are borderline cases where a patient or family may refuse some easily provided form of care precisely in order to hasten death; but such motives are generally hidden from the eyes of the law. Most often, life-extending treatment is refused because it will have little benefit in curing or ameliorating the disease, or because it would impose unnecessary suffering and other burdens on a patient who is already weak and vulnerable. As Dr. Leon Kass said at a recent congressional hearing on assisted suicide on April 29, these decisions are generally not about seeking death but about "how to live while dying." In fact, from a doctor's legal viewpoint the two situations are opposites. The patient's refusal of treatment gives a doctor no new legal power or authority, but places a firm limit on that power and authority: he may not provide or continue such treatment without the patient's consent, or he will performing a battery. By contrast, giving legal validity to a request for lethal drugs gives the physician a new power to take life that has never existed since the advent of the Hippocratic oath.
Until this spring, almost every state or federal judge to address the issue had found that refusal of medical treatment was qualita tively different from suicide or euthanasia. Courts have consistently ruled that a seriously ill patient's decision to refuse treatment does not cause death, but allows the patient to die of natural causes; death is really caused by his or her underlying illness.
Most courts establishing the legal right to refuse treatment have insisted so firmly on the distinction between refusing treatment and committing suicide, that if they are no longer allowed to draw that distinction they might well reconsider whether the right to refuse treatment exists either. But the Second Circuit judges assume that the opposite course is correct: Having rejected the grounds on which most courts have defended the right to refuse treatment, the judges nonetheless assume that it exists and then piggyback onto it a right to receive assistance in suicide.
If the two rights really are the same under the Constitution, what follows? Well, what follows is the same set of consequences that we have already seen in the Ninth Circuit decision. The right to refuse treatment, after all, belongs to everyone and not just to the terminally ill; so the right to assisted suicide can hardly be restricted to the terminally ill in any narrow sense of the term. (Unlike the Ninth Circuit, the Second Circuit judges do not try to define terminal illness but proclaim that everyone knows what it is; "everyone" presumably includes the legislators who wrote those 41 different laws cited by the Ninth Circuit.) The right to refuse treatment is often exercised on behalf of incompetent patients by family members, appointed proxies, and even state-appointed guardians. And once the obvious and traditional distinction between allowing nature to take its course and actively intervening to provide lethal means for suicide is destroyed, does anyone really think the court will find a new and convincing basis for the far more precarious distinction between assisted suicide and active euthanasia? In short, while the Second Circuit decision is not so ex plicit in drawing out the consequences of its legal reasoning, it takes us to the same place as the Ninth Circuit decision.
The Slippery Slope
Clearly the 'slippery slope' of euthanasia already has its illustrations in our history. No society -- I repeat, no society -- that has offi cially endorsed voluntary suicide or euthanasia has ever failed to move on to killing people without their consent. Greek and Roman society are sometimes cited as honoring an idea of' noble' suicide -- yet this practice also became a means of execution by the state, as in Socrates' forced 'suicide' by hemlock. Nazi Germany's experiment with euthanasia of the retarded and mentally ill was never based on the voluntary request of the victim, though it began with a request from the parents of a handicapped child and was often publicly defended in terms of the victims' 'right to die.' And according to the Dutch government's own 1991 study, The Netherlands' experiment in 'voluntary' euthanasia produces more killing of patients without their request every year than with their request.
Physicians in the Netherlands have moved fairly quickly from ending the lives of the terminally ill, to the physically disabled, to people who have no physical illness but are elderly or depressed. Now we know that doctors give lethal injections to handicapped newborn infants at least ten times a year -- infants with disabilities like Down Syndrome or spina bifida who certainly never asked to be killed.
In one recent case reported by American psychiatrist Herbert Hendin, a Dutch physician gave a lethal injection to a Catholic nun who was in considerable pain while dying. She never asked for euthanasia, but he felt that was because her religion would not let her -- so he simply gave it to her without asking.
These cases are frightening enough. But by 'constitutionalizing' the issue, our American courts have managed to do in days what it took the Dutch twenty years to do. In our legal system, the slippery slope is more like a leap from the edge of a cliff. But perhaps this is a good thing if it demonstrates to Americans all at once where this agenda leads. In our country there will be no gradual rais ing of the temperature, so that we are heated up to boiling without knowing exactly when to cry out. We should be crying out right now -- especially to the Supreme Court which is about to take up the Second and Ninth Circuit cases. (In this context, of course, we will have to cry out very articulately and with all the appropriate footnotes.)
Equal Dignity Under Law
What should we say to the Court, at the level of principled legal argument? I think we would do well to study U.S. District Judge Michael Hogan's ruling in Lee v. Oregon, which found Oregon's law allowing assisted suicide for the terminally ill to be unconstitutional.
Hogan's ruling is a mirror image of the Second Circuit decision now on its way to the Supreme Court. He argues that laws allowing assisted suicide for certain classes of citizens violate constitutional guarantees of equal protection under law, by depriving a class of citizens of the protections against killing that all other citizens continue to enjoy.
Surely there is no rational basis for treating terminally ill people and other people in completely opposite ways when they are tempted to commit suicide. Suicidal people are found in every demographic group -- especially among the young, the very old and members of certain high-stress professions. From the viewpoint of suicidal persons in any such group, their pain and suffering is more real and more intolerable than any physical pain that could be relieved by morphine and other pain-killers. Persistent suicidal desires among the terminally ill are not significantly more common, no more 'free,' and no less caused by treatable depression than such desires felt by people in these other groups. Yet an entire legal and political movement has dedicated itself to facilitating sui cide for the seriously ill, even while the law continues to forbid such 'assistance' for everyone else.
Why would the State continue to view assisting the suicide of anyone else as a homicide, but view assisting the suicide of certain seriously ill or disabled people as a decent and lawful act? The only possible answer is: Because the State has made its own suppos edly 'objective' judgement that these patients, unlike any other citizens, have lives not worth protecting. When these particular people think they have lives not worth living, government can think of no reason to disagree.
Imagine the scenario: Two people come forward wanting to commit suicide. Both have made a suicidal decision that they see as free and rational; both say they find nothing but pain and suffering in continuing with life. But one is able bodied, while the other has an illness or disability that two physicians say is 'terminal.' On this basis, a law like the one recently approved in Oregon says to the first person that his life is too valuable to throw away -- that we will provide counseling and psychological assistance to relieve these sui cidal feelings, and legally forbid anyone to provide 'aid' in suicide. To the second person the State will say: "Go fight ahead. In fact we've anticipated your request, by proclaiming in advance that we have no interest in preventing the suicide of someone with your condition. Officially the government doesn't care whether you live or die."
This is not a recipe for greater freedom. It gives to government a new power that no human being should have: The power to decide which citizens' lives will be protected by law, and which will not. As one columnist put it very succinctly during the debate on the California euthanasia referendum, this is "Death With a Note from Big Brother." s
Clearly, judges and others who support such legal developments do not think they are practicing invidious discrimination against people with serious illnesses and disabilities. They believe they are giving these people a new 'right' to end their lives painlessly. Yet they say they are not interested in granting this right to able-bodied people like themselves. If a law gave such selective 'freedom' for assisted suicide to other defined classes of people -solely to women, or to members of a particular ethnic or religious group -- howls of protest would rise up from civil fights organizations, and rightly so. The fact that many people do not see such invidious discrimi nation in the assisted suicide agenda is an indication of how deep some of our prejudices about frail or seriously ill people really are. Physically healthy people simply assume that in some objective sense they are indeed 'better off dead,' that their suicides are rational and legitimate when other people's suicides are not.
In fact this prejudice is directly contrary to the views of those with the most experience of serious illness or old age. Whatever opin ion polls may show at any moment -- and many of the polls have greatly exaggerated public support for assisted suicide by asking vague questions filled with euphemisms -- every major poll shows that senior citizens are far more opposed to assisted suicide than younger voters? Low-income voters, black and Hispanic citizens, and others who are relatively powerless in our society are also more opposed to it than others -- perhaps because they can well imagine assisted suicide becoming the 'treatment of choice' for peo ple like them when public health clinics are strapped for resources. Physicians who have treated many terminally ill patients also op pose assisted suicide more strongly than those without such experience.
In my view, Judge Hogan was absolutely correct when he found that a law allowing assisted suicide for the terminally ill "withholds from terminally ill citizens the same protection from suicide the majority enjoys." After finding that the Oregon law provided "little assurance that only competent terminally ill persons will voluntary die," he added: "The majority has not accepted this situation for themselves, and there is no rational basis for reposing it on the terminally ill.”
Safeguard' and the Bottom Line
Some people think the exploitation of vulnerable patients under a regime of legalized assisted suicide can be prevented by incorporating various 'safeguards' into the law. In fact, to some extent the Ninth Circuit's new ruling renders that question moot, by indicat ing that some widely supported 'safeguards' may well be found unconstitutional once the courts view assisted suicide as a fundamen tal right. For example, the court says any waiting periods to think over the euthanasia decision must be "short;'' and it says "constitutional concerns" would be raised by any requirement that family members be consulted and agree with the decision. 3 By noting that minor children have the same "right to die" as adults do, the court invites all the battles about euthanasia for minors and parental consent that we have already fought for many years in the abortion context.-4
In any event, calls for safeguards miss the point. Any law that singles out a class of citizens for disparate treatment under the law of homicide perpetrates the same basic injustice. Once that unjust decision has been made, efforts to 'fix' the law by tightening its loop holes only have the effect of defining ever more clearly the isolated class of patients to be singled out for exclusion from the law's protection. Such an unfair law cannot be 'fixed.' Government will still be making a pre-emptive judgement that citizens of a certain description -- the vast majority of whom have never expressed any desire to die — are good candidates for a premature death by lethal drugs.
It defies belief to claim that insurance companies, health maintenance organizations and state governments straggling to save money will not also act on such judgements. Even before it legalized assisted suicide, Oregon instituted a Medicaid rationing plan under which terminally ill patients who are poor will simply not be able to receive various life supporting treatments for their conditions. Once the assisted suicide measure passed, the state Medicaid director announced that assisted suicide will be covered for every pa tient -- it will be very high on the priority list, under the title 'comfort care.' (One wonders whether the state treasury really receives the greatest 'comfort' from this policy.) So the state will take away all the other treatments patients might have wanted to support life, and give them assisted suicide free of charge. This idea of essentially offering patients an economic incentive to assisted suicide by giving it public funds has been endorsed by that bastion of individual freedom in our society, the American Civil Liberties Union.
What to Do?
What is being done to oppose this, and what can we do? We can tell others what this issue really entails -- through articles, opinion pieces, letters to the editor, call-in shows and private conversation. We can write to our state and federal legislators, urging them to oppose legalization of assisted suicide and to pass new laws against, it where necessary. We can promote compassionate care of the dying by supporting, and volunteering at, local hospices and respite care programs. And we can pray that our society will come to a full recognition of the dignity of each and every human life.
In Washington, D.C., some groups are working together to advance a federal policy on this problem. Both President Clinton and Senate Majority Leader Dole recently announced their opposition to assisted suicide. A bill will soon be introduced in Congress to prevent all funding and support for assisted suicide in federal health programs. Recently 40 members of Congress wrote to the U.S. Solicitor General, urging the Clinton Administration to file a brief urging the Supreme Court to review and reverse the Second Cir cuit decision. And the U.S. Catholic Conference has joined with Lutheran, Southern Baptist and Christian evangelical groups to file its own brief urging the Supreme Court to take these cases.
In short, the current situation has many alarming features, and there is much work to be done. But if I have to offer one assessment of where we stand in the national debate on assisted suicide, it is this: We're not dead yet.
R.M. Doerflinger - Associate Director for Policy Development Secretariat for Pro-Life Activities, National Conference of Catholic Bishops
This paper was presented to the conference only in print.
Notes
1 Derek Humphry. Letter to the Editors. THE NEW YORK TIMES, 12/3/94, p. 22.
2 Compassion in Dying v. Washington, No. 94-35534, slip op. at 3117 (9th Cir. March 6, 1996).
3 Id. at 3201-2.
4 Id. at 3201 n. 120.
5 Id. at 3189.
6 Id. at 3200.
7 Quill v. Vacco, No. 95-7028, slip op. at 29-31 (2d Cir. April 2, 1996).
8 D. Saunders. In THE SAN FRANCISCO CHRONICLE, 8/31/92, p. Al8.
9. Even polls by the Hemlock Society show that "the younger the person, the more likely he or she is to favor this legislation" allow ing assisted suicide (Hemlock Times, Jan.-Feb. 1994. p. 9). A recent national survey by the WASHINGTON POST showed 50% support for making physician-assisted suicide legal (WASHINGTON POST, 4/4/96, p. Al8); but support dropped to 38% among those aged 65 or over. A July 1995 poll by The Tarrance Group found 56% to 40%. But those aged 65 and over - who some would see as thc primary beneficiaries of a legal 'right to die' - oppose the practice 55% to 37%, with 48% strongly opposed (Poll: Americans Divided on Euthanasia, LIFE AT RISK: A CHRONICLE OF EUTHANASIA TRENDS IN AMERICA, June/July 1995, p. 1).
10 In a recent survey of Michigan physicians, legalization was favored by 73% of those who "never" treat terminally ill patients, but by only 44% of those who treat them "very often" (J. Bachman et al ,Attitudes of Michigan physicians and the public toward legaliz ing physician-assisted suicide and voluntary euthanasia. NEW ENGLAND J. OF MEDICINE, 2/1/96 p. 306. The same correla tion is found among Washington physicians: J. Cohen et al., Attitudes toward assisted suicide and euthanasia among physicians in Washington State. NEW ENGLAND J. OF MEDICINE, 7/14/94, p.93.
- 11 Lee V. Oregon, 891 F. Supp. 1429, 1438 (D. Or. 1995).
12 Compassion in Dying, op cit. at 3204.
13 Id. at 3192 n. 100.
14 Id. at 3164.
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