Michigans Proposal B – A Dissenters Brief

by Fr. Charles Irvin

September,1998



We are in the midst of a highly charged emotional issue that touches the deepest of feelings within people, while at the same time called upon to apply cool logic and conceptual reasoning in order to respond to people’s feelings with respect to mercy killing. It is a daunting task.

I assembled a lot of material to share with you here but have been forced to set aside my original draft, which was in the nature of a legal brief and far too long. Instead I present to you here summaries of the present status of the law as well as the positions of our moral theologians as to the issue of assisted suicide. Hopefully this will be a motivational talk helping to equip us for debating this issue out in the public square. I have given a copy of this talk to your Regional Vicar, feel free to ask for a copy if you think it could help you. Also, my web-site address is on it should you want to read other essays and materials I have written on the issue.

And so we begin by directly facing the question of one of Jack Kevorkian’s more notorious attorneys: “What kind of a society forces people to suffer?” Perhaps you have noticed (as I have) that Jack Kevorkian’s attorneys insistently repeat that question whenever they are in front of a television camera or are talking with reporters. They immediately follow it with a statement to the effect that those who are not in favor of assisted suicide (you!) lack compassion. “It’s okay for you to die in suffering and in pain, but don’t force me to! It’s un-American to deny me my freedom of choice,” they cry. They lack no compunctions, however, when it comes to denying you freedom of choice as to school vouchers. There they argue that your tax dollars belong exclusively to the public school system and you cannot choose to apply your school tax dollars toward the education of your children in a school of your choice. Evidently you have freedom of choice, the freedom to choose what they have decided you must choose.

As to your freedom to commit suicide, however, when you look at present realities you see that anyone who wishes to already has the right to commit suicide. Why, then, must we have state-licensed assistants as a matter of public policy do it for them?

You and I have been demonized as right-wing religious fanatics lacking good faith, that our intentions are evil in that we want others to suffer because we don’t want to put them to death. The Kevorkian solution is presented as the only form of legitimate compassion. What a perversion it is to the word “compassion” which comes from “com” “passio”, meaning “to suffer with“. For in reality the Kevorkian solution eliminates the need for compassion by eliminating the patient! And sympathy is only required at the funeral home.

We need to acknowledge here that many people of good will favor assisted suicide, people such as “Merian’s Friends.” They present mercy killing to us with much greater civility and smoothness than Jack Kevorkian and his minions. Nevertheless “Merian’s Friends” likewise seek exactly the same solution, namely to eliminate suffering by eliminating the patient. And so it is that we are here today facing the proposal of Merian’s Friends (known as Proposal B) which they have successfully placed on the upcoming November ballot.

The language of Proposal B, if passed, will authorize legislation to legalize the prescription of lethal doses of medication to terminally ill, competent, informed adults in order to assist them in committing suicide. This proposal will (and please pay close attention to the language):

Section 1 – Allow a Michigan resident, or certain out-of-state relatives of Michigan residents, confirmed by one psychiatrist to be mentally competent and two physicians to be terminally ill with six months or less to live, to obtain a lethal dose of medication to end his/her life.

Section 2 – Allow physicians, after following required procedures, to prescribe a lethal dose of medication to enable a terminally ill adult to end his/her life.

As for section 2, we need to ask: “Just what are the procedures to be required of the doctors?” If Proposal B passes doctors would then be called upon to prescribe death in place of preserving life.

I want to highlight section 3 because, to my way of thinking, this is the “Achilles Heel” of Proposal B. Section #3 reads:

Establish a gubernatorially appointed, publicly funded oversight committee, exempt from the Open Meetings Act and whose records, including confidential medical records, and minutes are exempt from the Freedom of Information Act.

This third section of Proposal B should strike fear into the hearts of people who have no religious faith – as well as those who do. It will persuade a whole lot of people to vote against Proposal B, even if they favor assisted suicide.

Section 4 – Create penalties for violating these laws.

Some folks would have us think that euthanasia and mercy killing are different, claiming that euthanasia directly involves others in the putting the subject person to death, while assisted suicide principally involves the person committing suicide but who is only assisted with a little help from someone else. However, the distinction between assisted suicide and euthanasia is more one of methodology than one of substance, or intentionality, or who activates the lethal death-dealing agent.

I want to emphasize that with Proposal B’s provisions we are not talking merely about the exercise of private rights — because should Proposal B pass the State of Michigan would be directly involved in mercy killing. Through a special commission clothed in secrecy and appointed by Michigan’s Governor and paid for with your tax dollars, Michigan would be establishing and overseeing a new form of state sanctioned taking of human life. How utterly ironic that would be — and how terribly tragic it would be, because our State of Michigan in its Constitutional provisions has, from its beginning as a State until now, always rejected the death penalty out of fear of executing one innocent person! With the passage of Proposal B, we would be known as the State that has always prohibited the death penalty — but now we are the State that is into mercy killing.

What is noteworthy is that both law and moral theology treat assisted suicide as a contractual transaction. In the issue before us, both in law as well as in morality, there is a client (the one about to die), and a provider (the one introducing the lethal element which brings about death). And there is an agreement, a legal contract, involving a client and a provider, along with 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, and are dealing with contracts involving matters of judgment and mutual agreement. Additionally, the U.S. Supreme Court has repeatedly stated (even in Roe v. Wade) that the state has a compelling interest in the preservation of human life, an interest that overrides so-called rights to privacy.

One of Kevorkian’s more notorious attorneys is on the record as stating that Michigan’s laws against assisted suicide are just so much “papal bull”. By stirring up people’s emotions through the use of such rhetoric, he wants us to ignore the facts, one of the chief facts being that thirty-five other states in our Union have statutes against assisted suicide. Let’s be clear about it. The existing set of values as expressed in the public laws of our various fifty states prohibit assisted suicide, the one exception now being Oregon. So when it comes to “imposing values on others” it is Mr. Kevorkian and his attorneys who are attempting to write new law as well as impose their values on us, not the other way around. They deliberately attempt to have us focus on our emotions while dismissing clear-headed thinking with ridicule.

At this point I want to observe that both law and morality are joined at the hip even though they remain as distinct and somewhat independent realities. Actually they are interdependent realities, for we can distinguish between law and morality but we really cannot separate them. And this is so in spite of today’s mantra concerning the separation of Church and State. There is, as we all know so very well, a separation between Church and State. There is not, however, a separation of religious values from society, even though that is what Kevorkian and his followers must accomplish in order to prevail.

At this particular time in our recent American history our task is compounded by the great debate swirling around us over whether or not morality is something private and separate from public activity, and whether or not one’s private morals have any public effects. Can we, should we, separate and compartmentalize the two, or do both matter when it comes to public policy? And, in the long run, is any morality really private? That question is, of course, the subject of a ferocious public debate now swirling around us. When you stop and think about it, morality is meaningless in a world consisting of just one private person.

In Catholic morality we hold to the self-evident truth that life itself is our first and most basic gift from God, a gift over which we can only exercise careful stewardship — not domination or dominion. The earth, the environment, our talents, our world, are gifts God has given us, along with the gift of our very lives, to use in order to accomplish His purposes, in order to return them to Him increased by our love and energy. But what we do with our lives is our gift to God. And it is not His will that we should snuff them out. Stated another way, our intentions and purpose in exercising stewardship over His gifts to us are of supreme moral importance.

In the law, a good deal of controversy revolves around the intentions of the parties involved in their actions, in this instance, the intention of the patient and the intention of the care-giver. 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, between directly intending to cause death on the one hand, and on the other intending to do something that does not directly cause death even when it is known that death will likely result from the agreed upon activity. In other words, one can directly intend to kill another human being — or one can indirectly allow another human being to die. This is a distinction with an enormous difference, a good distinction that some people attempt to becloud and fuzz over, sometimes even ridicule and scoff as a distinction without a difference. The Supreme Court thinks that it does matter – that it really matters, to the point that it is controlling.

It is likewise a distinction that is employed in moral theology where it is known as the “Principle of Double Effect.” One can without culpability intend to do something while realizing that another consequence, a bad consequence, is likely to result. One can, for instance, intend to remove a cancerous uterus knowing that the fetus within it will die . . . and that intention is morally acceptable. The intention, you see, is to remove the cancer, not to kill the fetus.

This tried and true moral principle that comes down to us through the centuries permits me to ally myself with the intentions and purposes of the Hospice Movement and those wonderful people who seek to develop the management and control of pain while not intending to put the patient to death, all the while surrounding the dying person with dignity and tender, loving care. It is here, I think, where we as Catholics need to do a lot of work as well as develop our efforts. Likewise we need to redouble our efforts in giving greater care to those who suffer in emotional depression and despair.

Let us likewise stand with those among us who are afflicted with various kinds of physical disabilities as well as mental ones. We need to reach out to all of those who belong to the “Not Yet Dead” movement, who live in terror and fear at what might be their fate should mercy killing become law and they, too, should face The Final Solution. They desperately need us to affirm their dignity and their right to life, even though the slick, the powerful and the elite beautiful people may judge them to lack the sort of quality of life they should have in continuing on in life.

When we adopt the Hospice approach and insist on adequate pain control from our health care professionals, we must realize that prescribing large doses of pain medication is morally acceptable, even at levels where the amount of that medication may induce a shut down of vital organs. Our intention is morally legitimate. The effect is in the hands of God. Therein, it seems to me, we find the route we should take in meeting the Kevorkian challenge as well as offer a Christian response to “Merian’s Friends.”

For God did not create us in order to watch us suffer. Suffering is not His will for us. I realize, of course, that as Catholics we have spiritualized suffering to join our sufferings into the sufferings of Christ so that it can be salvific and redemptive. (This, by the way, was the basis for the Rev. Dr. Martin Luther King’s power to change the conscience of our entire nation). I realize, also, that joining our sufferings into the suffering of Christ is pleasing to God. But I also remember when Jesus was asked why there were so many things that were wrong in life, why there was so much evil, pain and suffering in the world, and His response was: “An enemy hath done this.” It is our Ancient Enemy who is at work here and in whose presence we find in the root causes of our pain and suffering. In other words, it is not God’s will that we should suffer. It is His will that we bring His healing and redemptive work to bear so that the world is made whole again and pain and suffering are eliminated. Why else should we pray that God’s kingdom come here on earth, among us here, as it is in heaven?

With these United States we founded a Republic built upon 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 life cannot be either taken away or given away, which is to say that life is something that inheres in our very nature. To snuff it out is to usurp it from God. Human life comes from our Creator, it is not granted to us by monarch 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 in our possession or under our dominion, but rather something with which we are endowed from a Higher Source of life. Therefore, we have no right to destroy it.

The Assisted Suicide Movement (sometimes they present themselves as The Right to Die Movement) seeks to tear 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 moral, legal and constitutional order. To accomplish this purpose the Euthanasia Movement must disconnect morality from law. To do that they must dissociate our jurisprudence from the principles enunciated in our Declaration of Independence. The grounding of human rights must, for them, be reduced to politics. What is and what is not a human right must be shifted from endowment upon us by our Sovereign Creator and built anew on the will of those holding political power and control over us. Which explains why Kevorkian’s notorious attorney rails against religion whenever he can and insists that assisted suicide is permissible or impermissible, legitimate or illegitimate depending upon who is in power, something he covets with an avaricious lust.

Presently we have a rather narrow range of state-sanctioned forms of taking human life, namely 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 (or assisted suicide, as its advocates now call it) should be added, they say, to the list — a list on which capital punishment is not found here in Michigan.

But what about the claim that we have an “absolute right” to assisted suicide? The following are certain rights in law that we already have:

  1. 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 employing every procedure and treatment possible to keep the patient alive, fearing lawsuit for medical malpractice or malfeasance for failing to do so. (And just who will be the most vociferous attorney in filing such a lawsuit?)

  2. We have the right to commit suicide. This is often called “Rational Suicide” by personal choice. The irony is that with assisted suicide persons other than the one committing suicide determine “rationality” and thus “qualify” the person’s 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 that the Right to Die advocates claim we should have:

  1. The right to obtain another’s active and intentional help in committing suicide. They present it as having the “right to have a doctor with you when you die,” implying that when we die we cannot now, under our present laws, have a doctor with us. But that’s nonsense. It is also not the issue. What is at issue is whether or not the doctor can prescribe a medication called death. Thus the proponents likewise claim we have:

  2. 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 newly discovered constitutional right to “Assisted Suicide.” Jack Kevorkian’s attorneys and supporters have aggressively and emotionally pressed the claim that assisted suicide is a right of privacy (the “Right to Die” is their slogan) guaranteed by the U.S. Constitution. The Supreme Court has expressly disagreed, finding no such right in our Constitution. This alleged right, it was argued, allows someone wishing to die (and 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. The Court of course recognized that by its very nature this was not a private, personal matter, and the government has a compelling interest in this activity, needing to determine who was the provider of the lethal agency bringing death. This whole activity is anything butprivate.

In two other cases, the Glucksberg and Vacco decisions, the U.S. Supreme court just last year paid close attention to several questions that we should carefully note now.

  1. The State of New York was not claiming that assisted suicide was prohibitedby the U.S. Constitution. New York simply argued that assisted suicide is not constitutionally required. 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 other words, states have the right to regulate the practice, recognizing all along that we have no inherent constitutional right to have others directly and intentionally put us to death.

    We need to recall here the parallel between the argument in favor of mercy killing and the arguments brought forward in the initial debates on legalizing abortion, particularly noting that what is deemed permissible is not thereby required. Let me highlight this parallel because, with the legalization of abortion allegedly for a few exceptional cases such as rape and incest, this argument has led to tens of millions of deaths. And so with assisted suicide I believe that while it may be regarded as permissible in a few cases, it will eventually become something to be demanded.

  2. In the Glucksberg and Vacco cases the promoters of assisted suicide argued another point, namely that there is no meaningful difference between refusing lifesaving medical treatment and directly and intentionally ending the client’s life. This argument was presented under the Equal Protection Clause of the Fourteenth Amendment with the claim that New York’s ban against assisted suicide violated the equal status of both types of clients. 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 regard 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; and no one is permitted to assist a suicide.” Everyone in both categories is treated equally.

We need to have enough foresight to recognize that once we license someone to mercifully kill another person we will then face the problem of how we shall ever be sure that the deceased’s request to be put to death was fully deliberated and made in complete freedom from emotion or psychic compulsion? And isn’t any intention to suicide a desire that is compelled? And how do you guarantee that family members, opting to commit euthanasia for one of their loved ones, make their choice free from compulsive selfish motives, conflicts of interest, or free of any and all compelling mercenary intent?

Here again, law and moral theology are joined at the hip, in this instance dealing with the question of freedom of choice. For a choice is moral to the extent that it is made in freedom. The greater the context of freedom surrounding the decision, the more responsible (consequently the more moral) the decision. The less the freedom, then the less the moral responsibility, and it follows the less the legal responsibility. Obsessive compulsion, emotional stampeding, one’s sense of being worthless and without value, the desire not to be a burden on one’s family, the sense of duty to “step out of the way” and allow the family’s resources to be invested in its youngsters – all of these can becloud and even coerce a decision to die. They can likewise impel family members to urge the old, the sickly and useless parent to step aside and voluntarily have their life terminated for the benefit of the rest of the family. And just how emotionally, spiritually and psychologically free is anyone who decides they want to commit suicide? Very serious questions face us as families, as medical professionals and care-givers, and as a society, questions that lie hidden underneath the promotional rhetoric employed by the forces advocating Proposal B.

There are two more activities of a legal and moral nature that follow upon these questions of freedom of choice, and they also 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 to 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. The problems we face in these activities focus on the meaning of the terms “voluntary,” and “an adequate understanding of their dire condition.” As you can imagine, those legal problems are complex. And they are related to the abuse of mercy killing as reported in Holland, where the level of Involuntary Euthanasia frightens many.

Other very serious problems face us should Proposal B pass and assisted suicide laws be enacted. Can you imagine the number of lawsuits that will likely be brought against doctors, hospitals and health care entities for NOT putting people to death, people who 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.

Finally, Proposal B contains a specific provision which I regard as extremely ominous, even diabolically cunning. Section 3 calls for a gubernatorially appointed (and just WHO dearly wants to be our next Governor?) publicly funded oversight committee (that means funded with your tax dollars), exempt from the Open Meetings Act and whose records, including confidential medical records, and minutes are exempt from the Freedom of Information Act. In other words, the watchdog agency is not composed of elected officials, they are political appointments of the governor, and what they think, say and do is to be kept secret, without public accountability. If nothing else persuades you to vote against Proposal B that should. If I were a secular humanist without any particular religious belief system I should be nevertheless extremely suspicious, even fearful, of this Assisted Suicide Secret Committee.

Until very recently, our society licensed killing only by judicial magistrates, police officers, military personnel, and private citizens using deadly force in self-defense against deadly aggression. In every one of these forms of state-sanctioned killing we have public scrutiny and public accountability in overseeing them. Each and every one of these activities is permitted only to protect our common good. Proposal B establishes a frightening new precedent by placing assisted suicide behind the doors of an oversight committee clothed in secrecy, even to the point of hiding the actual cause of death as stated on the Death Certificate by attributing the cause of death to something other than “Assisted Suicide”. No autopsy will be performed and cremation could follow, thus completely removing any possibility of determining actual cause of death.

Private killing in the name of private rights has never been countenanced in our society. Until, that is, Roe v. Wade‘s acidic effects went to work. Now we find the destruction of human life both at its beginning and at its end to be something that, for many, seems quite legitimate, under the rubrics of the so-called rights of privacy and freedom of choice.

Proponents of abortion on demand followed the same path of secrecy when it came to shielding teenage girls from the scrutiny of their parents. It is by no accident that the forces favoring abortion on demand are, on the whole, the same forces that are now pushing for assisted suicide to be sheathed in secrecy in a Triumph of Darkness. Human life is to be wrested from the hands of God and placed under the control of Man’s will, from conception, throughout life, and to the end of life. It is Man’s dominion that is being asserted over God’s. And as for compassion? Well, it is to be rendered unnecessary by simply eliminating the need for it through the elimination of defective or unproductive human life.

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