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Major Court Decision Near 

ve8QAd   |   April 01, 1997

The Roe vs. Wade of euthanasia may be coming soon. Major oral arguments on two appellate court decisions were heard in January. The 9th Circuit U.S. Court of Appeals in California and the 2nd Circuit U.S. Court of Appeals in New York had both handed down decisions that would have legalized euthanasia in all 50 states with very few restrictions. These had been appealed to the U.S. Supreme Court which heard the cases in January. A decision will be handed down before the end of this term in June.

In both cases, the wording used to legalize or not to legalize was “physician-assisted suicide”. But few in the pro-life movement, or in the various medical, nursing and other allied professions, thought it would stop at that. Pro-lifers saw it as a giant step, literally off of a cliff, that would in fairly short time authorize the actual killing of patients by physicians. The 9th Circuit Court decision, particularly, used wording that could easily be used to authorize direct euthanasia in later court decisions.

At issue was a law passed in the State of Washington forbidding assisted suicide. This had been struck down by a radical feminist judge whose decision read like it had been written by the American Civil Liberties Union. It stretched the Constitution to unbelievable lengths and in effect would have created a right to euthanasia in the U.S. Constitution. This lower court decision had been demolished by a three-judge panel in the 9th Circuit Court in a decision containing the famous phrase, “Unless we see the federal judiciary as a floating constitutional convention…” Unfortunately, in an en banc decision of 11 judges of the same court, the lower court decision was reinstated. Judge Rinehart who wrote this decision patterned it after Roe vs. Wade. In thinly veiled language, he moved well beyond a conscious request by a patient for aid by the physician in suicide. His decision all but justified the lethal dose to be given by someone else without the patient’s consent, for social reasons.

The Second Circuit Court arrived at the same end-point but by a different rationale. They pointed to the fact that a patient may voluntarily refuse to accept a treatment, even if that refusal will allow death to occur. These judges said that they saw no essential difference between voluntarily refusing treatment and the very specific, positive intervention of giving, or helping to give, a fatal dose of a drug to a patient.

The pro-life movement was not caught unprepared. As James Bopp of the National Legal Center for the Medically Dependent & Disabled stated, “We’ve been preparing for this one for over ten years.” One might say that this particular office in Indianapolis had been set up to ultimately cope with just this threat. Out of that office has been coming the intellectual law journal entitled Issues In Law & Medicine. Out of that office also, under the capable management of Mr. Tom Marzen and Daniel Avila, has come a succession of supportive papers, research and otherwise, that have gone worldwide. These gentlemen have testified before lawmakers and have helped to write laws against assisted suicide. They were not the only group, of course, as several other well known legal defense funds have been active during this time also. When, however, this threat materialized one year ago, the Indianapolis office called all of them together and coordinated the defense. Ultimately, over 40 Amicus Curiae briefs were submitted to the court. These briefs meticulously covered almost every possible angle of this case. They were a powerful and, it would seem, effective influence pleading the pro-life case before the court.

The American Medical Association (AMA) filed an amicus brief in the 9th Circuit case and was joined by 40 other national medical nursing and care-giving organizations. It incorporates powerful and convincing arguments against assisted suicide. To mention several: The pain of most terminally ill patients can be controlled throughout the dying process, and the risk of such medication hastening death is minimal. Most requests for suicide are because of fear of pain to come, of loss of dignity, of dependency and becoming a burden. And all of this is complicated by the most significant factor of all — clinical depression, which is usually treatable.

Another amicus brief by the National Hospice Organization notes that the two decisions “fail to appreciate that the final stages of life present opportunities for meaningful experiences that could be lost without the state’s protection of life and prevention of assisted suicide, even among the terminally ill. Moreover, many terminally ill seek assisted suicide, not because they cannot be cured but rather because they cannot bear the pain and depression that often accompany terminal illnesses. These factors can almost always be ameliorated.” … When such patients “are given proper palliative and supportive care, the desire for assisted suicide generally disappears.”

The amicus brief of the American Geriatrics Society added a very important consideration. It said, “Life just before death can be especially precious and important. When supported and comfortable, dying persons ordinarily accomplish important tasks such as saying farewells, disposing of property, completing life projects and enjoying their remaining days.”

Detailed in a number of the amicus briefs was the Dutch experience. Over a decade ago a judge allowed the direct euthanasia of a patient in Holland. Subsequent decisions broadened and codified that permission. After some years, the judge-made law in Holland allowed a doctor to give a lethal injection under the following conditions. (1) A voluntary request by a patient of sound mind, (2) That request being made on repeated occasions, (3) Witnesses, (4) Several doctors agreeing, (5) The patient being in uncontrolled pain, (6) The patient being in terminal condition, (7) Force majeure, a Dutch term stating that there was no other answer. Many of you have undoubtedly read that all of these qualifications exist to prevent abuses. In fact, with no exception, they are all ignored in many cases.

Your author is president of the International Right to Life Federation. I have visited Holland almost annually over the last decade and three times in the last two years. As a physician, I have spoken to other doctors, specifically to small, private groups exploring how this issue is handled. Some patients are directly killed, some without their knowledge or consent. Many patients have necessary treatment withdrawn to bring about their demise. In many, many cases a dose of morphine is quietly, slowly increased until the patient expires. 135,000 people are buried in Holland every year. Reliable estimates state that over 20,000 are either directly killed by lethal injection, or directly helped on their way by increasing doses as above by doctors, and that as many as half of them without their knowledge or consent.

One example may suffice. A pro-life colleague had admitted a cancer case to a hospital, and by Friday had a definite diagnosis of metastatic cancer. She was not in pain, and the decision to be made the first of the week was – what type of chemotherapy and treatment could be used to keep her comfortable and prolong her life? He left on a weekend holiday. On Monday, making hospital rounds, he found another patient in her bed. Inquiring of the resident doctor as to where his patient had been moved, the answer was, “Oh, well she had a metastatic cancer. Hers was incurable.” — “Yes, but” — “Well, we needed the bed.”

Australia has been through a very wrenching experience this past year. Their Northern Territory narrowly passed a law authorizing direct euthanasia. In the ensuing fallout, most of the other state legislatures rejected such a bill. Finally the national parliament, which can override a territorial law, debated this at length, and both Houses voted to cancel the law. In Australia, all medical groups unanimously opposed the law, as did all but a tiny number of churches.

Everyone knows of Dr. (now Mr., as he lost his license) Kevorkian and of his obsession with assisting the suicide (or direct killing?) of patients. He was tried twice for homicide. In both cases the jury acquitted him. His saga continues.

On the West Coast we have seen initiative referenda in California, Oregon and Washington, which in each case turned down euthanasia initiatives. Finally, Oregon passed a law permitting euthanasia (“assisted suicide”) by a 1% margin. This law has been enjoined pending a full review by the federal appellate court.

Recently Life Issues Institute called a leadership meeting in Washington, DC on this issue. Attendees came from Holland and England, and much valuable information was exchanged.

This was followed by an excellent legal seminar at Catholic University Columbus School of Law, in Washington, DC.

And what will the Supreme Court do? There seems to be a near-unanimous opinion of pro-life attorneys who were there, and who reported at these meetings, that the court will not find a new right to “assisted suicide” in the Constitution. If not, then what? It is hoped that the court will simply say no. It could go further and rule that it would be unconstitutional to allow “assisted suicide”. It could back away and qualify with a “no, but”. We must wait and see. The most likely result will be that the court will not find a right in the federal Constitution but that it will recognize a state’s right to legislate. In this case, laws at state level, and initiative referenda at state level would then be governing, unless the state constitution were to be interpreted otherwise.

This issue will stay in suspended animation until the U.S. Supreme Court decision which will come down before the end of June. Then what? Let us predict, in the states that do not have a law forbidding assisted suicide, such laws will be proposed and vigorously pursued. Definite plans are being made in the State of Oregon to resubmit the issue in an initiative referendum to the voters of that state in November 1997. It was through this method that their law was passed allowing “assisted suicide”. With a Supreme Court decision behind them (they hope), and a much more educated electorate, along with no other major issues to compete with it for public attention on the ballot, Oregon pro-lifers will hope to reverse that awful decision and re-establish the right-to-life in Oregon.

The Pro-Life Response? It is of the utmost importance that a saturation education campaign proceed at the grass roots level. Here are some recommended resources:

Seduced By Death, an excellent new book by Herbert Hendin, MD – W. W. Norton & Co. He provides an extraordinarily detailed analysis of the Dutch situation and draws conclusions.

Dying Well, by Ira Byock, MD – Riverhead Books. Dr. Byock shares real-life stories of his dying patients. His extensive experience, both personal and professional, provide a thorough insight into hospice and palliative care. The only negative is his approval of removing food and water.

Euthanasia: When the Doctor Kills the Patient – Hayes Pub. This brochure is a thorough summary of the issue by J. C. Willke, MD.

The Battle for Life, by The Christian Medical & Dental Society, is a euthanasia packet including an outlined presentation, public service radio announcements, and a 15 -minute video.

The German Euthanasia Program by Fredrick Wertham – Hayes Pub. Co. This is a chilling description of the Nazi Experience.

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