Strategy and Analysis of Strategic Concepts
Since the euthanasia movement’s goal is to legalize active, voluntary and, in some cases, involuntary euthanasia, what has to be legalized is what cannot be legalized! That is, we cannot legalize the killing of people who are innocent of unjust aggression against other’s lives.
Under our system of law, which must abide by the Constitution, laws permitting the killing of innocent citizens would be clear violations of the Fifth and Fourteenth Amendments of the Constitution and therefore invalid. This point is crucial! It demonstrates that the only way euthanasia could be legalized is by a court decision, not by a statute.
Even more important, killing the innocent, regardless of motive, is a violation of our most cherished principles as a people, embodied in the concept of unalienable rights – to life, liberty and the pursuit of happiness.
This sanctity-of-life ethic, as it is called, while rapidly eroding among elites in the academic, medical and legal spheres, is still held in high esteem by millions of ordinary American citizens who would be outraged to find it swept away and replaced by a new, “enlightened” quality-of-life ethic, conceived and orchestrated by those same elites.
Euthanasia advocates are well aware of these formidable obstacles, so they must devise a strategy which will overcome them. By analyzing their tactics and programs, a definite strategy becomes clear:
They are asserting that there is a constitutional right to die and have geared their educational programs to the general public, professional groups in medicine, theology, nursing and law to persuade people to accept this concept.
They propose to redefine legal personhood and replace the sanctity-of-life ethic with the quality-of-life ethic.
They discuss “hard cases” and blur the crucial distinction between cases involving ordinary care (legally mandatory) and extraordinary care (not legally required). Recall that the definition of active, direct or positive euthanasia includes the withholding or withdrawal of ordinary care!
Analysis of the Strategic Concepts
We will examine first the idea of a constitutional right to die, and all that that implies, and then we will turn to consideration of redefining legal personhood, coupled with the establishment of the quality-of-life ethic.
The constitutional right to die: In order to legalize euthanasia, a way must be found to circumvent the Fifth and Fourteenth Amendments to the Constitution, which protect the lives of innocent persons, since society is not about to repeal those amendments.
So euthanasia proponents propose a new, additional unalienable right – a “right to die.” This way people can choose to forfeit their right to life in favor of their right to die.
This right, they say, could find precedent in the constitutionally protected right of privacy granted by the Supreme Court abortion decisions of 1973 (Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179). The Court could simply extend that right to include decisions about dying.
In the publication of the Fourth Euthanasia Conference, Dilemmas of Euthanasia, Prof. Cyril Means acknowledged the legal problems posed by euthanasia and proposed a method of winning through the court for someone “who is conscious but suffering from an incurable malady” under the Eighth Amendment, which forbids the state to impose cruel and unusual punishment.
Therefore the state could not forbid a patient to take “measures to alleviate his suffering even by shortening or terminating his own life.” If the patient is unconscious, a guardian or committee could be appointed on his behalf.
In response to comments that there should be a test case in the Supreme Court and the idea that the right to die entailed a “claim on other people to help us die,” Professor Means, as a law professor, gave his opinion that “we have a system of constitutional adjudication whereby people can assert rights as against the state or as against their professional aides like doctors and others. Consequently, if one makes a claim of such a constitutional right and gets it before a court and the court says, ‘you have got it,’ you can have it without legislation. In every other country . . . you would have to get through legislation” (p. 36).
Persuading much of society to accept the idea of a right to die has been relatively easy, especially with all the help of the media publicizing the phrase “right to die.”
Propaganda began in the late 1960s and early 1970s at euthanasia conferences and in the media and with the introduction of right- to-die or living-will legislation in state legislatures. By 1978 the Euthanasia Society had changed its name to the Society for the Right to Die, announcing plans to get right-to-die legislation passed in as many states as possible and, by 1981, reporting success in 11 states. The Society for the Right to Die again changed its name to Choice in Dying, its current name in 1992.
Right-to-die or living-will legislation: This merits further discussion, since these bills are being promoted vigorously in many state legislatures as part of the euthanasia strategy.
The short-term purpose, seemingly innocuous, is to have states legalize living-will documents. These documents were conceived by the Euthanasia Society in 1967. In them the person states, “If there is no reasonable expectation of my recovery from extreme mental or physical disability, I direct that I be allowed to die and not be kept alive by medications, artificial means or heroic measures.”
Objections to right-to-die or living-will legislation:
Legally, patients already have the right, under the common law right of bodily integrity and intangibility, to refuse extraordinary care, which is at issue in this type of legislation.
Physicians may feel constrained by the legal limitations of these documents and discontinue treatment too soon. Inevitably, some patients will die who might have recovered.
If living wills are legalized, then physicians of patients who have not signed them might assume that patients want maximum treatment and refuse to discontinue inappropriate treatment, thereby causing excessive hardship and expense for patient and family.
Living-will documents are signed before, often long before, the circumstances of a particular illness occur. Therefore it is doubtful that they fulfill the legal requirements of informed consent as stated in the federal guidelines, which require that “a patient must be given . . . a detailed explanation of the procedures, benefits and alternative procedures connected with his treatment . . .” The patient may not sign a consent document waiving his legal rights or releasing an institution or agent from liability for negligence (R. Hummel, Hospital Progress, June 1976, p. 55).
The terminology is so broad and, in some cases, so vague it becomes medically and legally ambiguous. It is virtually impossible to write a bill comprehensive enough to cover the special circumstances of each patient’s medical condition, which would be essential for the practice of good medicine and good law.
Some groups such as the elderly, the immature or the indigent might be unduly pressured, because they do not want to be a “burden,” to cut down on the increasingly higher medical costs for treatment.
The terminology in some of the bills is so ambiguous it could be construed to allow withholding ordinary care. For example, “artificial means” might be interpreted to exclude the use of tube feedings for patients unable to take food by mouth, thus denying a patient all nourishment.
All of the living-will type of legislation is geared to blur the distinction between ordinary and extraordinary care. The long-term purpose of right-to-die or living-will legislation is the great propaganda value in conditioning people, state by state, to accept that they have a “right to die.”
However, the goals of active voluntary and involuntary euthanasia cannot be achieved by such legislation since direct killing or the withholding of ordinary care are not permitted and any attempt to pass such laws would quickly bring a challenge in the courts, which is where the euthanasia advocates plan and hope to win all their goals.
It would be the Supreme Court which would ultimately have to decide: Do we or do we not have a constitutional right to die? The implications are awesome and will be dealt with subsequently in our study of the question. Fortunately, in Cruzan v. Harmon, 110 S. Ct. 2841 (1990), the U.S. Supreme Court decided that the U.S. Constitution does not include a “right to die.”
Redefine “legal person” and replace the sanctity-of-life ethic with the quality-of-life ethic: Under the Constitution, all innocent persons are guaranteed the protection of their lives. The dictionary defines “person” as “a human being” and defines a human being as “a person.” The U.S. Constitution gives rights not to human beings, but rather to persons. Title I U.S. Code Section 1 defines “person” to include individuals. The 1947-1948 U.S. Congress first enacted the definition of “person” without making it clear that every human being or individual is a person. After a few months’ exposure to publicity from the Nazi War Crimes trials Congress realized that the method the Nazis used to justify the holocaust was to define Jews and other unwanted humans as non-persons. Defining them as non-persons took away all their rights and protections. The same Congress that had passed Title I U.S. Code Section 1 a few months before then changed Title I U.S. Code Section 1 to make certain that every human being had to be defined as a person by defining every individual to be a person. Euthanasia adherents propose that we redefine “person” to exclude some classes of human beings; that human beings must pass certain tests before being declared persons who have unalienable rights.
Daniel Callahan (not in favor of euthanasia) in Abortion: Law, Choice and Morality defines “person” as “one who is capable of rationality, interaction with others, affectivity and culture making.”
Joseph Fletcher, a leading euthanasia advocate, gave his version of “person” in Attitudes Toward Euthanasia: “Something that has to be answered in terms of cerebration, memory, sense of futurity, some evident clinical capacity for interpersonal relationships, will or purpose; lovingness . . . a minimum I.Q.; utilitarian questions about social productivity and its potential . . .”
The argument goes that those human beings who fail to qualify as persons under this new definition can then be legally denied unalienable rights, so to kill them would then not be a violation of law.
This is precisely what the Supreme Court abortion decisions of 1973 ruled concerning all human beings before birth, declaring they were not persons because they were not “capable of meaningful life” and were “not persons in the whole sense.” Thus they were deprived of their unalienable right to life and it became legal to kill them. Euthanasia advocates argue that other classes of human beings could be declared non-persons, without unalienable rights, in order for them to be killed legally. The abortion decisions could be used as precedent.
In The Right to Die with Dignity, publication of the First Euthanasia Conference (1968), Dr. Henry Pitney Van Dusen said the term “life” meant “the total personal being – body, mind and spirit.”
Florence Clothier argued for “death of the body for those whose central nervous system and mind are already dead . . . these once men and women.”
Chaplain Robert Reeves argued that when illness caused someone to lose his freedom, integrity and dignity, then his personhood was gone and we should find a way to give him “an honorable exit from life.”
In Dilemmas of Euthanasia (publication of the Fourth Euthanasia Conference), Prof. Cyril Means, euthanasia movement leader (also pro-abortion leader in the Supreme Court abortion cases), said, “What is sacred and what the law seeks to protect is not human life itself, but the human person.”
Dr. Joseph Fletcher argued that a new ethical concept based on the quality of life must replace the old ethics based on the sanctity of life, in Humanhood: Essays in Biomedical Ethics (Prometheus Books, 1979).
Definition-of-death bills: These pieces of legislation define death as a “total cessation of all brain function” and are supported by euthanasia advocates as part of their strategy of redefining personhood.
William J. Curran, J.D., refers to “brain death – a form of irreversible coma, which is a quality-of-life standard” (New England Journal of Medicine, February 2, 1984, p. 298).
Willard Gaylin wrote in Harper’s Magazine in September, 1974: “The problem [of euthanasia] is well on its way to being resolved by what must have seemed a relatively simple and ingenious method. As it turned out, the difficult issues of euthanasia could be evaded by redefining death.”
Arguments against definition-of-death bills: Paul A. Byrne, M.D., and Paul M. Quay, S.J., Ph.D., presented many arguments against brain-related criteria for death, including the following: “Cessation of total brain function, whether irreversible or not, is not necessarily linked to destruction of the brain or to the death of the person” (JAMA, 242: 1985-1990, 1979; and Understanding Brain Death, Nebraska Coalition for Life Educational Trust Fund).
Irreversible cessation of breathing was, at one time, a sign of death but when it was discovered that non-functioning of the respiratory organs did not always mean the destruction of the organs, it led to the use of mechanical ventilators or respirators to take over the lost function. This saved many lives.
So, too, with heart functioning; when it was found that cessation of heartbeat did not mean the destruction of the heart, mechanical means of resuscitation of heart functioning were contrived.
Drs. Byrne and Quay cited the work of P. Safer (“On Evolution of Brain Resuscitation,” Critical Care Medicine, 1978, pp. 199-202) on successful brain resuscitation in cases where both brain-related criteria and the older, generally accepted criteria would have declared that death had occurred.
The authors spoke of the “recoveries of all those who have shown for many hours, or even days, no discernible brain function as a result of various depressant poisons or of hypothermia.”
They later stated that “almost all sets of criteria depend for their reliability on the absence of drugs (and a number of other medical conditions) that can mimic death by suspending brain activity for lengthy periods.”
Yet several of the greatest experts in this field (who themselves accept the notion of “brain death”) state that it is often impossible to find out whether such drugs or other conditions are present or absent.
They further state that there are more than 30 different sets of medical criteria to determine irreversible cessation of brain function, and that “one out of every 12 patients declared dead by the various criteria strongly urged upon state legislatures and courts, still shows non-random function of the cortex of the brain, the part where sensation, feeling and consciousness seem to reside.”
Dr. Byrne, Father Quay and attorney Peter Salsich have, in an in-depth article in the Gonzaga Law Review, presented reasoning as to why it is necessary to pass a statute worded as follows: “No one shall be declared dead unless the respiratory and circulatory systems and the entire brain have been destroyed. Such destruction shall be determined in accord with universally accepted medical standards.” The Gonzaga Law Review article is “Brain Death – the Patient, the Physician, and Society” (18: 3, 1982/83, pp. 429-516). A reprint is available from American Life League.