by Fr. Charles Irvin
May 12, 1998
Assisted Suicide Public Forum
I would like to begin with an examination of the nature of euthanasia, the so-called “happy death.” The classical understanding of euthanasia was that it was mercy killing, the voluntary ending of the life of someone who was terminally and hopelessly ill. That classical definition is presently undergoing modification in that those who are to be “euthanized,” it is now appears, need no longer be suffering from a terminal illness. Jack Kevorkian has made that perfectly evident to us all.
Added to the classical definition were two conditions: euthanasia can be either “active” or “passive.” Active euthanasia means that a physician or other provider takes deliberate action, an action inducing death by the introduction of some chemical or some agency that was not otherwise present in the patient’s life, in order to bring about the client’s immediate death. Passive euthanasia means that some form of life-sustaining treatment or mechanism is withdrawn so that the patient is returned to a condition of being supported only by nature, all artificial life sustaining means being withdrawn.
We need to carefully note that there is a client, the one about to die, and a provider, the one introducing that which brings about death. There is an agreement, a social contract, involving a client and a provider. And there is a judgment on the part of the provider that the client is competent and able to make a rational and valid choice. In other words, there is a social transaction taking place, not simply the exercise of a private and personal right. Clearly we are not talking about something that is private; we are talking about a contract between two or more persons, a contract involving matters of judgment and mutual agreement. Additionally, the U.S. Supreme Court has repeatedly stated that the state has a compelling interest in the preservation of human life, a public policy interest that overrides so-called rights to privacy.
In the law, a good deal of controversy revolves around the intentions of the parties involved, the intention of the patient and the intention of the care-giver. All cases involving criminal law require a close examination of the intentions of the actors; with what intention did they act, evil or good? Were those intentions legal or illegal? There is a distinction in law, one carefully observed by the U.S. Supreme Court in arriving at its decisions in these matters, between intending to directly cause death, and intending to do something that does not directly cause death even when it is known that death will result from the agreed upon activity. In other words, one can directly kill another human being, or one can allow another human being to die. This is a distinction with an enormous difference, one that some arguments attempt to obfuscate and fuzz over.
In this century our human decision-making process has become highly questionable. This is especially the case where we are faced with “involuntary and active euthanasia.” The practice of mercifully putting people to death was raised to the level of a judicial principle in Nazi Germany. The German legal system developed the theory that certain individuals live lives “not worthy of life itself” and so could legally be put to death. An individual’s private, legal right was thereby raised to the level of public policy. Thus the progenitors of the Holocaust, under the guise of mercy killing and euthanasia, put many of the aged, the mentally ill, the disabled and handicapped, and others deemed by the German authorities as living lives “not worthy of living,” to death. The shift from this sort of legal precedent to the Holocaust was a shift only in degree, not in kind. For the elites who are in possession of wealth and power there is a strong drive to assent to “the law of the survival of the fittest.” It was what Margaret Sanger was all about, and deliberately so. In such a mind set, those who are defective, unproductive, and drain away precious resources should either never be born or else voluntarily “step aside” and remove themselves and their weaknesses from claims on our resources. They live lives “not worthy of living” and so should be mercifully euthanized. Philosophically, Margaret Sanger and Adolph Hitler were joined at the hip in the realms of social and public policy. In this debate over mercy killing, we need to clearly recognize that we are not talking about the exercise of private rights.
I would next like to place the activities associated with euthanasia and the present status of the law within a time line. Our Anglo-American Common Law tradition began with the first development of English law following upon William the Conquer’s successful invasion of England in 1066A.D. From that initial point in our Anglo-American Common Law history, the body of law that subsequently developed, and which is presently developing as we speak, carries on down to our time. And in that body, suicide was seen as an impermissible act of killing, an unlawful taking of human life, an act of destruction of human life not sanctioned by the state. The state had a compelling interest in the preservation of human life. Human life was seen as valuable and to be preserved by limiting human power, the power of the state or of others, when it comes to destroying human life.
Over here on this side of the Atlantic, seven hundred years after William the Conqueror’s invasion of England, we founded a republic on the principle that we are endowed by our Creator with certain unalienable rights, among them being the right to life. Unalienable is the controlling word; it means that it cannot be either taken away or given away. In other words, life is something that inheres in our very nature and one cannot be either deprived of it or even voluntarily give it away. Human life comes from our Creator, it is not granted to us by king or parliament, Congress or Supreme Court. Coming from our Creator, human life belongs to our Creator, not to our government. In other words, human life is to be regarded as sacred, something that is not our possession, or something that we can possess by ourselves, but rather something with which we are endowed from a Higher Source of life. Therefore, we have no right to destroy it. The question, you see, is this: “Who has power and control over human life?”
The movement that is presently upon us (and which is the reason why we are here in this forum) is what was formerly known as the Euthanasia Movement. It is now renamed as the Right to Die Movement, a movement that would shift us away from our legal tradition as well as from our nation’s founding principle that human life is unalienable. Its proponents are attempting to impose their new and radical values on the existing fabric of our legal and constitutional order. This movement seeks to broaden the scope of what is presently legally permissible in the taking of human life and allow another form of state sanctioned direct and intentional killing. Presently we have a rather narrow range of state-sanctioned forms of taking human life, namely the killings permitted in capital punishment cases, the killings permitted in justifiable self-defense, the killings permitted in war, and the killings authorized by use of deadly force on the part of law enforcement officials. Mercy killing, it is now argued, should be added to the list.
In 1938 the Euthanasia Society of America was founded with the purpose of changing American law and establishing suicide and assisted suicide as a fundamental right guaranteed to all freedom loving Americans who wish to exercise freedom of choice free from of governmental interference. In 1974 the Euthanasia Society of American changed its name; it now called the Society for the Right to Die. Its publicity advertises that any American has a right to a doctor when they die. Of course we all know that we have the right to die and that we all know that we have the right to have a doctor when we die – it’s the way we die and what the doctor does to us when we die that the Right to Die Society has placed in front of us as a public policy issue to be debated.
The following are certain “rights” that we already have:
- We have the right to reject or to terminate life-sustaining medical procedures. Some call this “Passive Euthanasia.” It places an already dying person back into the position of being supported in life by nature alone, without the presence of any outside medicine, machine, procedure or external agency that supports or sustains in life the already dying person. The famous Karen Ann Quinlin and Nancy Beth Cruzan cases have already established this right in law. Nevertheless, many hospitals and medical professionals insist on employing every procedure and treatment possible to keep the patient alive, fearing lawsuit for medical malpractice or malfeasance for failing to do so. Other motives may also be in play.
- We have the right to commit suicide. This is often called “Rational Suicide”by personal choice. The irony is that persons other than the one committing suicide determine “rationality” and thus “qualify” the person to commit suicide. These questions arise when it comes to settling life insurance claims. There are, of course, no laws that either authorize or punish this manner of dying. Insurance companies are, however, quite interested in the matter.
The following are alleged rights which the Right to Die advocates claim we should have:
- The right to obtain another’s active and intentional help in committing suicide.
- The right to euthanasia, namely to authorize another to kill you directly and intentionally.
These latter two “rights” were the ones rejected by the U.S. Supreme Court last year in the Washington v. Glucksberg and Quill v. Vacco cases wherein it was claimed that there exists a constitutional right to “Assisted Suicide.” This alleged right allows someone wishing to die (not necessarily someone suffering from terminal illness) to obtain another’s help in committing the act of suicide or to directly and intentionally terminate the life of the client. Thus the provider turns a lever for his or her client, or opens a valve, or places lethal doses of chemicals or medicines in the hands of the client. Obviously this is a social contract; thereby removing it from the realms of being exclusively a private and personal choice and/or act, even though its proponents will keep on insisting that it is a private, personal matter. By nature it cannot be a private, personal matter; the government has a compelling interest in the matter, as do insurance companies, as to the provider of the means for the suicide. The whole thing is anything but private.
In the Glucksberg and Vacco decisions, the U.S. Supreme court last year paid close attention to several questions which we should carefully note here this evening.
- The State of New York did not initiate the case before the Supreme Court, nor did the State of New York argue that assisted suicide was prohibited by the U.S. Constitution. New York was simply arguing that it is not required, and the U.S. Supreme Court agreed, holding that the state has a legitimate and compelling interest in both preserving human life as well as in determining how and under what circumstances human life can be ended. In others words, states have the right to regulate the practice, recognizing all along that there is no constitutional right inhering in persons to have others directly and intentionally put them to death.
We need to recall here the parallel between this argument and the arguments brought forward in the initial debates on legalizing abortion, particularly noting that what is deemed permissible is not thereby required.
- In the Glucksberg and Vacco cases it was argued that there is no meaningful difference between refusing lifesaving medical treatment for a client and directly and intentionally ending the client’s life. This argument was presented under the Equal Protection Clause of the Fourteenth Amendment, the argument being that New York’s ban on assisted suicide violated the equal status of both types of clients under the Constitution. The Supreme Court summarily rejected that argument saying: “On their faces, neither New York’s ban on assisting suicide nor its statutes permitting patients to refuse medical treatment treat anyone differently than anyone else or draw any distinctions between persons. Everyone, regardless of physical condition,” noted the Court, “is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.”
To return now, to my thoughts which I am sharing with you here this evening, there are two more conditions of a legal nature that require our attention. One is “Voluntary Euthanasia”, the other “Involuntary Euthanasia.” Voluntary Euthanasia is found in the situation in which persons wishing to die have expressed their wishes to either be allowed to die naturally or be put to death. “Involuntary Euthanasia” is the situation in which persons are put to death with a presumption that they would wish to die if they either could have expressed their will to do so, or if they had an adequate understanding of their dire condition they presumably would have expressed their will to die.
The problems faced in these situations have to do with what is to be considered “voluntary,” and what is to be considered “an adequate understanding of their condition.” As you can imagine, those legal problems are complex, manifold and perhaps even intractable.
Other problems face us should we now “discover” a right to die in the U.S. Constitution and then include assisted suicide in the array of rights it recognizes as inhering in us as free persons. Consider these hypothetical which could easily follow should we now be informed that we have a constitutional right to freely choose to be put to death.
One could imagine the number of lawsuits that could be brought against doctors, hospitals and health care entities for NOT putting people to death, people whom it could be successfully alleged would choose to die if they had an adequate knowledge of their condition. Once it is successfully argued that John Doe would have wanted to die, it can then be asserted that his doctor, hospital and other care-givers could be successfully sued or prosecuted for NOT putting him to death.
One could imagine a wounded combat Marine dying a horrible death on the battlefield and in his excruciating pain screaming out for his platoon leader to shoot him and then further imagine his relatives later on suing his platoon leader as well as the Marine Corps for damages for not shooting him to death, thereby putting him out of his misery.
Any number of lawsuits could be engendered by friends and families who could allege that hospitals, nursing homes, medical care-givers, and others should have put their clients to death but did not.
It is important to consider what has followed from the first arguments for legal abortions to the situation we have today. Those of you who are as old or older than I am will remember the first arguments all had to do with compassion and mercy for poor, suffering women who desperately needed abortions for a variety of reasons. What began as a legal argument has now blossomed into a raging public policy debate centering around the cry for “Abortion on Demand.” Is there any reason to think that a parallel development will not occur with respect to the arguments for compassion and mercy for a few, suffering persons who are dying and who desperately need assisted suicide in order to end their misery? What will begin from a few isolated cases of mercy-killing will end with killing on demand.
As was once said, “those who do not know history are doomed to repeat it.”
Which brings me to conclude my remarks with the observation that centuries upon centuries upon centuries of human living have not produced the cries for euthanasia that are presently ringing in our ears. One can see why. Human wisdom tells us that euthanasia is a dangerous licensing of yet another form to taking human life.
It is no accident that Adolph Hitler and his fellow Nazis were the first to make euthanasia a matter of public policy. His regime was the quintessential Culture of Death, a culture that grew out of notions of developing a race of super men and women, free from all defect, free from all infirmity, free from all that would limit us. Cried Nietzsche: “God is dead”. It was necessary to declare God to be dead in order for Man to climb into His throne and take over the management of the universe, including human life itself.
Is Nietzsche dead? Quite! And God appears to be still alive. But Nietzsche’s ideas are alive and well, prospering right here in America and in our own Culture of Death. Hopefully our legal authorities will have enough grasp of human history and clearly recognize the lust in the human heart to usurp God and decide who will be born and who will die. For while we may lust for that power, we must remember that there is a vast difference between lust and love. And it is only love that will save us from ourselves.